Calusinski Wins Round 1 in Quest to Overturn Conviction

The state of Illinois will have to file a response to a Petition for Post Conviction in the case of Melissa Calusinski, the former Lincolnshire daycare worker convicted in the 2009 death of 16-month-old Deerfield boy Benjamin Kingan, after their motion to dismiss was denied on Monday.

“We now advance to Stage 2 of the post-conviction process,” said Attorney Kathleen Zellner, who is representing Calusinski. “Everything that happened in court was positive today. The judge could have dismissed the petition, but he didn’t.”

Judge Daniel Shanes, during a brief hearing Monday at the Lake County Courthouse in Waukegan, gave the prosecution 90 days to file a response to the petition. A status update, which will be in effect Stage 2 of the Calusinski team’s move for freedom, is scheduled for Friday, December 18 at 9 a.m.

“The judge determined the petition is not frivolous and the state has to provide a response,” Zellner told the media following Monday’s hearing. “Everything has gone the way we have wanted thus far and we are confident this will advance to Stage 3 as well.”

That ‘Stage 3’ is when the evidentiary process will come into play, said Zellner, who noted it will likely not occur until the Spring.

“It is very difficult to overturn a trial conviction,” Zellner said of the timetable.

Family and friends of Calusinski were in court on Monday supporting the defendant, who admitted to police in 2009 she killed Kingan, but only after an interrogation that lasted nine hours and after denying it 79 times. She has since maintained her innocence.

“We are happy to be advancing to the next stage,” said Paul Calusinski, Melissa’s father. “We appreciate the work of the attorneys keeping us informed and Melissa is fully aware of the stages behind this process. She is going to be ecstatic when she hears this and we are all looking forward to advancing this petition to the next stage.”

The petition alleges a constitutional violation regarding a state pathologist who has admitted that he provided an untruth in an affidavit during the original trial, Zellner said. The petition also includes new evidence in the case including a new manner of death issued by current Lake County Coroner Thomas Rudd, who maintains that Kingan suffered no skull fracture when he died.

“We want to give the state all the time they need to respond and bring their best response, because we are confident ours will hold up,” Zellner said.