CHICAGO (CBS) -- A former daycare center worker has won the first round of her bid for a new trial in the death of a toddler in Lincolnshire.
Melissa Calusinski's attorneys hope a Lake County Judge will grant them an evidentiary hearing on X-ray evidence that they say contradicts the original autopsy ruling that 16-month-old Benjamin Kingan died of a skull fracture in 2009.
Four years ago, Calusinski was convicted of murder in Kingan's death, and was later sentenced to 31 years in prison. However, earlier this year, Lake County Coroner Dr. Thomas Rudd changed the official ruling on the cause of death from homicide to undetermined.
Calusinski's lawyer said that's not the only reason the conviction should be thrown out.
"Their case was built on no prior injury. We can now show there was a prior injury, and … we can show there was no skull fracture. That's two huge pieces of evidence," Kathleen Zellner said.
Lake County Judge Daniel Shanes said he would like to hear from the prosecution on Calusinski's request for a new trial.
The Lake County State's Attorney's Office has said it intends to file a motion to dismiss Calusinski's petition for a new trial, and prosecutors were given 90 days to make their case to throw out the petition for a new trial. Shanes will then determine whether to move forward with an evidentiary hearing, the last step before a new trial could be granted.
Zellner looked at Monday's hearing as a win for Calusinski's bid for a new trial.
"It could have been dismissed. Of course it's possible, yeah. He could dismiss it, see, after the first stage, and most post-convictions are dismissed after the first stage. So we have advanced to the second," she said.
Calusinski's father said the process can't go fast enough.
"It's hard for the family. It's hard for Melissa. Basically, everything that I've said from the very beginning, my daughter's been innocent," Paul Calusinski said.
The prosecution has until Dec. 18 to present its case. That's when Shanes will determine whether an evidentiary hearing is necessary.
Originally, pathologists said "fatal acute" bleeding had caused Benjamin's death in January 2009, but Rudd – who was not in office at the time – said previously undisclosed X-Rays indicate the boy had suffered a head injury dating back to October 2008.
"These were unknown to the defense prior to the trial, and during the trial," Rudd said in July.
An anonymous tip led to existing X-ray scans of the boy's skull. Dr. Rudd said Calusinki's "conviction is based on wrong evidence."
Rudd said two newly-found X-rays could and should exonerate Calusinski.
"There is no skull fracture. The whole prosecutorial case is based on the fact that the child died of an acute skull fracture. There is none," he said.
Caluskinski initially maintained her innocence when questioned by police, but after nine hours of interrogation, she told investigators she slammed Kingan's head on the ground.
The former coroner originally claimed there was a skull fracture, but Rudd said that's just wrong, and X-rays prove it. Rudd said Kingan suffered a head injury in October 2008, and kept reinjuring himself, over and over.
"The child awoke from a nap with a tangerine-sized bump on the back of his head, which nobody could explain at the time. Now, he awoke very irritable, crying, and had projectile vomiting. … That's highly indicative of a head injury" he said. "This child died of the old injury; nothing new."
If Shanes rules there should be an evidentiary hearing on Calusinski's request for a new trial, Zellner said she expects it would not happen until next spring.
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