LAKE COUNTY, Ill. -- The latest chapter in Melissa Calusinski's bid for a new trial began earlier this month with an anonymous phone call to her father. The call is detailed in an extensive pleading filed Tuesday by Kathleen Zellner, Melissa's defense attorney in Lake County, Ill. Circuit Court.
"Mr. Calusinski, you need to tell your attorneys to get the second set of X-rays of Ben Kingan from the Lake County Coroner's office," the male caller said. Paul Calusinski, who says he didn't recognize the voice, asked "Who is this?", but the caller had already hung up.
That phone call led to the discovery of X-rays, taken more than six years ago, that could be the key that unlocks prison gates for Paul's 28-year-old daughter convicted of killing a toddler in her care.
In January 2009, 16-month-old Ben Kingan died suddenly after falling unconscious at the Minee Subee daycare center where Melissa Calusinski was working as an aide. The investigators, told by the pathologist who did the autopsy that the child had suffered a skull fracture that day, subjected Melissa to an intense nine-hour interrogation. After hours of denials, Melissa finally broke down and confessed to throwing the toddler down in anger. She was charged with first-degree murder.
At trial, Melissa's defense attorneys argued that the confession was coerced by investigators and introduced medical witnesses who told the jurors that Ben Kingan's death was the result of a head injury that had actually occurred months earlier. The state witnesses, however, all relying on the opinion of the original pathologist, convinced jurors that Ben Kingan's injuries happened on the day he died. Melissa was convicted of murder and sentenced to 31 years in prison.
Now, in a newly filed petition asking for her conviction to be vacated, defense attorney Kathleen Zellner reveals the new evidence uncovered by that anonymous phone call, a set of X-rays taken during Ben Kingan's autopsy. Zellner says Melissa Calusinski was wrongfully convicted on false medical evidence and that authorities "suppressed" the X-rays that support her innocence.
That "false" evidence, as everyone who watched "Blaming Melissa" on "48 Hours" knows, is that Ben Kingan had died due to an acute injury suffered on the day of his death. In fact, Dr. Eupil Choi, the pathologist who did the autopsy on Ben Kingan, has since admitted that he made a mistake at autopsy and failed to identify evidence of an earlier injury.
Zellner says the newly discovered X-rays further prove that Ben had swelling in the brain in the days and weeks before he died. According to the defense filing, Ben's head in an X-ray "appears shaped like an old-fashioned light bulb," that "Ben's brain was swelled in close proximity of his skull" and that such swelling was unlikely to occur overnight due to an acute injury.
Zellner also contends that the newly discovered X-rays raise doubts that Ben Kingan had suffered a skull fracture on the day he died, as Dr. Choi stated and prosecutors reminded jurors over and over again at trial.
Paul DeLuca, Melissa's trial lawyer, claims in an affidavit filed in support of Zellner's petition that he had asked for the entire file, including any X-rays, but was told by then Lake County assistant state's attorney Christen Bishop that X-rays taken were "not readable or legible." He says he was given a disc with unreadable ones, but why wasn't he given the others that suddenly appeared? Were they deliberately withheld from the defense? Who is the anonymous caller who finally let Melissa's family know the X-rays existed? And why now?
And there is this question: If Zellner is right and the X-rays further support the theory that Ben Kingan was injured before Melissa Calusinski even worked at the daycare center, then why did she confess?
Zellner says that Melissa, who has a low IQ, adopted the story "forced upon her by police" who mistakenly believed that Ben Kingan had an acute injury that could only have happened that day. The proof, says Zellner, is that the story Melissa eventually told police doesn't match the actual evidence: Ben "did not sustain a single injury to his back, shoulders or neck" that would have resulted from being thrown to the ground.
Kathleen Zellner is now asking the court to vacate Melissa Calusinski's conviction. If that happens, Melissa will have an anonymous caller to thank for her second chance.
"48 Hours" reached out to the Lake County State's Attorney's office, and received this response Friday afternoon from Lake County State's Attorney Michael Nerheim:
"I have been notified through media reports that counsel for defendant Melissa Calusinski has filed a document known as a post-conviction petition.
This is a standard petition filed by defendants who have been convicted and sentenced for various criminal offenses.
As I have previously indicated, I am aware of no new evidence in this case that suggests that this defendant was improperly convicted of first-degree murder.
In the future, should this defendant have any such evidence of actual innocence, I will review that claim as I would in any other case prosecuted by my office.
In the meantime, a Lake County jury unanimously found this defendant guilty for the first-degree murder of an infant. An Illinois Appellate Court has affirmed that conviction. While we were not provided a courtesy copy by the defense, we will obtain a copy of the petition, review it, and respond accordingly."
Erin Moriarty is a "48 Hours" correspondent. She investigated Melissa Calusinski's conviction in the episode, "Blaming Melissa."Watch the full episode online.