who examined 16-month-old Benjamin Kingan didn’t tell jurors hearing
the trial that he had failed an exam to become board-certified,
defense attorney Paul DeLuca said, arguing Calusinski’s rights were
violated because that information could have affected the impact of
“He lied to the
jury,” DeLuca said of Dr. Manny Montez, who graphically described for
jurors the brain and skull injuries that caused the boy’s 2009 death.
“Dr. Montez was a significant witness for the state.”
But Lake County
Judge Daniel Shanes on Thursday rejected the request for a new trial,
saying he didn’t believe the omission violated Calusinski’s rights to
a fair trial, the Sun-Times is reporting.
“I just don’t
see how the defendant was prejudiced,” Shanes said as he refused to
overturn Calusinski’s November murder conviction.
And Shanes, who
at one point dismissed the dispute as “much ado about nothing,”
pointedly said he didn’t believe Montez misrepresented his medical
background when questioned by defense attorneys during her trial.
“I do not find
Dr. Montez lied. There is no perjured testimony in that regard,”
co-counsel Dan Cummings said they were “disappointed” by the ruling
and expect to raise the issue when they appeal Calusinski’s murder
conviction and 31-year prison sentence.
convicted of killing Benjamin on Jan. 14, 2009 when she became
frustrated and hurled him to the floor at the Minee Subee daycare
center in Lincolnshire.
Montez and other
doctors testified the 22-pound boy suffered fatal brain and skull
injuries that appeared to have been inflicted when his head hit a tile
by DeLuca during the trial, Montez testified he was not
board-certified in pathology, saying he hadn’t taken the required
subpoenaed after the trial indicate he failed a board exam in anatomic
pathology in 2001 and hadn’t taken an exam for forensic pathology,
defense attorneys said.
have been told those details about Montez’s medical background to
better understand his expertise, defense attorneys argued.
due process rights were violated by this witness lying,” said DeLuca,
who argued during the trial that other medical evidence indicated the
Deerfield boy could have suffered from prior, undiagnosed brain
bleeding that contributed to his death.
immediately be reached for comment, but prosecutors contended he
didn’t lie because he told jurors he was not board-certified. The
details of that lack of certification wouldn’t have affected the jury
verdict, prosecutors said.
“It didn’t matter to the case,”
Assistant State’s Attorney Christen Bishop said.
It took only seconds
for daycare worker Melissa Calusinski to hurl 16-month-old Benjamin
Kingan to the ground so violently he suffered fatal head injuries.
But her brief action
caused lasting, irrevocable harm, a Lake County judge said Thursday as
he sentenced Calusinski to 31 years in prison for the 2009 killing at
a Lincolnshire day care center.
“In two to three
seconds, people can lose everything. In two to three seconds, a person
can lose his life,” Judge Daniel Shanes said before imposing a prison
term that will keep the 25-year-old Calusinski behind bars until she
is in her 50s.
woman faced a possible life sentence after being convicted in November
of first-degree murder and aggravated battery in the Deerfield boy’s
death on Jan. 14, 2009.
Shanes instead opted
for the shorter prison term, saying since he couldn’t undo what
happened to Benjamin, it was time to “move forward.”
“Whatever the court
does, it cannot undo the tragic events of that day,” said Shanes, who
called the case “a civilized society’s nightmare.”
Calusinski, wearing a
blue jail uniform, her hands shackled, sat calmly as she was ordered
vehemently denied hurting the child she called “a wonderful boy.”
“I want everyone to
know I am innocent of this crime. I did not abuse or hurt him in any
way,” she said. “I will never stop fighting this. And I will always
maintain my innocence.”
Her attorneys, who
already have appealed her conviction, echoed her claim that she never
harmed the boy left in her care at the Minee Subee day care center.
“We believe in her
innocence,” defense attorney Paul DeLuca said after the sentencing,
adding Calusinski was prepared for the lengthy prison term.
“She was ready for it.
She’s a strong person,” he said.
also showed little reaction as Calusinski was sentenced, but both had
fought back tears earlier as they recounted the pain of losing their
son at the hands of someone they trusted to care for him.
“He had so much life
ahead of him and she took it away from him and us,” Amy Kingan said,
her voice breaking as her husband, Andy, sat beside her, holding her
hand. “He will never experience his first day of school, learn to ride
a bike, play sports, graduate high school, fall in love, get married
or give us grandchildren.”
Three years after
their son’s death, she and her husband still have trouble accepting
that he is gone.
“We wish so badly we
could hold him in our arms just one last time,” Amy Kingan said.
Calusinski told police
in two videotaped statements she became frustrated and threw Benjamin
down when he fussed as she tried to wash his hands after he’d eaten an
afternoon snack of animal crackers and fruit juice. She told
investigators she saw him crawl to a bouncy seat, then found him
unconscious a few minutes later.
argued during her trial that police coerced those statements from
Calusinski after hours of intense questioning. She repeated that claim
Thursday at her sentencing.
“My statements were
false, but I had no choice but to admit those things,” she said. “I
was so scared — I did not understand what the detectives were telling
me to say.”
contended Calusinski never harmed the boy, but said Benjamin had
prior, undiagnosed brain bleeding that could have been abruptly
aggravated by even a minor head injury — a view backed by two
pathologists who testified on her behalf.
Bishop sought a 65-year prison term for Calusinski, saying Benjamin
was a “happy, healthy baby boy” before she threw him down.
“She forever altered
the lives of so many people by ending the life of one,” Bishop said.
“This defendant is accountable for her actions that day in harming and
Calusinski felt nothing when a judge sentenced her last week to 31
years in prison.
It was a stark
contrast to the shock and horror that she said overwhelmed her when
she was found guilty three months ago of murdering a Deerfield toddler
at a Lincolnshire day care center where she worked.
This time, she
"It's just a
number to me, because I know I am innocent," Calusinski said from Lake
County Jail, in her first media interview since her 2009 arrest. "I
know that I'm going to get out of here, and I am going to do whatever
it takes to prove my innocence."
Calusinski confessed to the crime on videotape, the petite
Carpentersville woman, now 25, has since maintained that she was
wrongly targeted for the death of 16-month-old Benjamin Kingan. Her
lawyers have argued that her confession was coerced during a 10-hour
interrogation, in part because of her low IQ.
Yet jurors at
her trial in November apparently believed her admission and not her
lawyers' claims that it was coerced. They convicted her of
first-degree murder, rejecting a lesser charge of involuntary
manslaughter. At her sentencing, Judge Daniel Shanes said he had "no
doubt the defendant voluntarily made that (confession)."
prepares to be transferred to state prison to complete her sentence,
her confession is one aspect of the case that her lawyers are focused
on as they seek to win her a new trial. And although some observers
question why anyone would confess to a crime they didn't commit, in
recent years, defendants in two high-profile Lake County murders —
Jerry Hobbs and Juan Rivera — were both cleared, despite both giving
case, she had been interrogated for more than six hours before
offering the first hint of culpability in the boy's death. Earlier in
the questioning, she had suggested Benjamin might have injured himself
because of his propensity to throw himself onto the ground during
tantrums. Later, she offered that he might have hit his head on a
chair when he accidentally slipped from her arms.
hours, Calusinski's interrogators — Round Lake Park police Chief
George Filenko and Highland Park police Detective Sean Curran — tried
different tactics to elicit her confession, ranging from telling her
that they were sure the boy's death was accidental, to telling her
they were sure it was intentional.
agreed with a "yeah," after Curran suggested she had intentionally
thrown Benjamin to the floor. Later, she recounted that version of
events back to the investigators and used a doll to demonstrate how
she mishandled the boy.
jailhouse interview this week, though, Calusinski said that she
finally confessed because she was "very scared." She also said she was
grief-stricken over Benjamin's death and was lacking sleep and food.
"I wanted to get
out of there. … I was so isolated," said Calusinski, who added she's
never been in trouble before besides a parking ticket. "I thought,
'I'll tell them what they wanted to hear so we can all go home.' I
didn't think about jail. They made it clear I was going home."
confession, when she was told she was being charged, Calusinski said
she immediately protested and claimed her innocence.
"I was like,
'You guys are making a huge mistake, I did nothing to him,'" she said.
"They ignored me."
she's always been obedient and did what she was told. She said that
might have led her to agree with police when they told her she was
involved in Benjamin's death.
She also admits
that learning was never easy for her and she was often the brunt of
teasing and bullying because of it.
"I was kind of
slow, but I did my best no matter what," she said. "If I said the
wrong answer (other kids) would call me stupid. I learned to ignore it
and do my own thing."
Her own thing
turned out to be a love of art, the outdoors and children. Beginning
her first baby-sitting job at age 13, she later became a nanny for
five children before taking the job at Minee Subee in the Park nursery
everything, she hasn't given up her dream of being an elementary
school art teacher.
"I love kids,"
said she continues to grieve for Benjamin, whom she said was "really
happy. He was bold, he loved to play, he was always smiling. I had
pictures of him on my cellphone."
She said she
still doesn't know what happened to Benjamin that day but believes his
fatal injury might have been caused by his habit of throwing himself
backward to the ground, something she said he would do to get
parents, Andy and Amy Kingan, did not respond to an interview request.
According to a victims' impact statement read by Amy Kingan at the
sentencing, she and her husband believe Calusinski caused their son's
death and the heartbreak it brought to their family. Among the
couple's other children is Benjamin's twin sister, who was also at the
day care center when he died.
Melissa's actions, our children have been forever affected," Amy
Kingan said. "The kids wonder if their teachers at school are going to
kill them. There is no way to comprehend what Melissa has done to us,
our family, our friends and most importantly little Ben."
For her part,
Calusinski said she's taking things "one day at a time," reading,
writing and drawing portraits of other inmates' children. She's
anxious about being moved to prison, likely next week.
"I'm scared and
worried because it is a new environment," she said. "But I'm going to
continue to stay strong. I know I am not going to be in there for a
found guilty in toddler's day care death
By Tony Gordon -
A Lake County jury deliberated
for about seven hours Wednesday before finding Melissa Calusinski
guilty of first-degree murder and aggravated battery to a child after
a two-week trial.
Calusinski, 25, faces up to
life in prison when she is sentenced sometime early next year in the
Jan. 14, 2009, death of 16-month-old Benjamin Kingan of Deerfield.
The conviction on the most
serious charges came in spite of a last-minute move by Calusinski's
defense team that persuaded Lake County Circuit Judge Daniel Shanes to
allow the jurors to consider two lesser offenses.
Shanes agreed to tell the
eight women and four men on the jury they could convict Calusinski of
involuntary manslaughter or reckless conduct in the event they did not
believe she was guilty of murder or aggravated battery.
The consequences could have
been significant for the Carpentersville woman, who could have been
sentenced to a maximum of 10 years in prison if convicted of
involuntary manslaughter, while reckless conduct in this case would
have been punishable by up to three years in prison.
Benjamin's parents were in the
courtroom when the verdicts were read but left without comment.
“We will appeal everything,”
defense attorney Paul DeLuca said upon leaving the courtroom. “Melissa
is devastated, just devastated, and I think the combination of a
child's death and a confession were too much to overcome.”
Calusinski was a teacher's
aide at the former Minee Subee in the Park day care center in
Lincolnshire that Benjamin attended with his twin sister, Emily.
Police said she was alone in
the classroom with Benjamin and seven other toddlers when she hurled
Benjamin to the floor.
In two videotaped statements
to police that were played for the jury, Calusinski says Benjamin was
fussing as she carried him across the room, the other children present
were causing a commotion and she became overwhelmed and frustrated.
Assistant State's Attorney
Christen Bishop urged the jurors to convict Calusinski of murder and
to reject the defense theory that Benjamin had an undetected existing
head injury that he aggravated by pounding his own head on the floor.
“This is not an accident, this
is not reckless, this is not a bump on the head and this is not
Benjamin throwing himself backwards,” Bishop said. “Benjamin Kingan
was not a ticking time bomb who exploded on her watch.”
Bishop and the other
prosecutors called several physicians to testify during the trial who
said Benjamin was a normal healthy toddler until the day that he died.
Dr. Eupil Choi, who performed
the autopsy on Benjamin, testified that the boy hit the floor with a
force equal to that of a fall from a two-story building.
Calusinski's defense had
doctors as well who said Choi's autopsy was flawed in several ways and
that he failed to detect numerous signs of the previous injury.
Attorney Paul DeLuca suggested
the injury may have been inflicted the October before Benjamin died,
when the staff at Minee Subee saw a bump on the back of his head just
before a regularly scheduled doctor visit.
“Two days later, he is in the
doctor's office and there wasn't a CT Scan, there wasn't an MRI,”
DeLuca said. “Maybe it would have detected something, but we will
DeLuca also asked jurors to
disregard his client's admissions to police, saying they were the
result of professional interrogators who exploited Calusinski's low IQ
and inexperience in dealing with police.
“These guys are good, they are
pros,” DeLuca said. “By the time they were done with her, Melissa
Calusinski thought she was going home; that is how messed up she was."
day care worker admitting she hurt child who later died
By Ruth Fuller -
January 12, 2011
dramatic moment yet in the pretrial phase of the Minee Subee day care
center death came last week, when the recorded confession of the
accused center employee, Melissa Calusinski, was shown in court.
Though a judge
had yet to rule on whether the interrogation video will be allowed
during Calusinski's trial, it showed that she was questioned for
nearly 10 hours before she agreed with an interrogator's statement
that she slammed 16-month-old Benjamin Kingan's head to a carpeted
floor shortly before he died in January 2009
has pleaded not guilty to first-degree murder in Benjamin's death,
which occurred while he was in the care of the now-shuttered day care
center in Lincolnshire.
The video shows
that for hours during questioning by two members of the Lake County
Major Crimes Task Force, Calusinski repeatedly denied having anything
to do with Benjamin's death or knowing what happened to him.
hours into the questioning, Calusinski, of Carpentersville, suggested
that Benjamin could have caused his own fatal injuries when he threw
himself violently backward to the carpeted floor, hitting his head
audibly shortly before his death. Calusinski has said he had a habit
of doing that during tantrums.
In the video,
Round Lake Park Police Chief George Filenko, one of the investigators,
tells Calusinski, "We've got this narrowed down to a really tight time
frame. Something happened where you got frustrated, aggravated,
whatever. Something happened, but it wasn't him throwing himself
"That's the only
thing I could possibly think of," Calusinski responds. "I never took
out any frustrations out on any of my kids, ever."
questioning continued, the interrogators told Calusinski that they
knew the injury happened right before Benjamin died, when she was the
only one caring for him.
In the pretrial
hearing, one of Calusinski's attorneys, Paul DeLuca, stopped the video
to ask Highland Park Police Detective Sean Curran, who was on the
witness stand, "When you told Melissa it happened within minutes, did
you have medical evidence or was it a tactic?"
"I knew it
could've happened within minutes, but it was more of a tactic," Curran
Later, on the
video, the interrogators tell Calusinski that they know what happened
to Benjamin was an accident.
"If you didn't
intend on killing someone, we wouldn't want you to go to jail," Curran
says. "I know that you are upset, but stuff like this happens all the
time. Who knows, he could have had some pre-existing condition."
explains that Benjamin slipped out of her hands when she got him out
of a chair after a snack and hit his head on the back of another
chair. After she tearfully describing what happened with the
assistance of a stuffed bear as a prop to represent Benjamin, Filenko
says, "You're doing the right thing."
investigators leave the room for about an hour, then return and tell
Calusinski that they have spoken to the pathologist, who said that
Benjamin could not have died the way she suggested.
out of time here, and we're running out of stories," Filenko says.
"Every time you come up with another story it takes away some of your
"We don't want
to feed you a story. We want you to tell us exactly what happened
here. If the doctor doesn't concur with what you're telling us here,
there's going to be a determination that you are being deceptive, and
that's not where you want to be."
"If you are
lying, it looks like you intentionally killed this baby," Curran says.
"You understand this is your last opportunity to tell us the truth."
"There's no way
I would ever, ever take my frustrations out on a kid," Calusinski
investigators start to walk out of the room again, at which point
Calusinski asks when she will be able to go home. She says she is
feeling claustrophobic in the interrogation room in the Lake Zurich
Police Department, which is about 8 feet by 12 feet, and is nauseated
from not eating all day.
When Filenko and
Curran return, their tactics become more aggressive and they begin to
swear and yell at Calusinski.
"That story you
are giving us is a load of (expletive)," Curran says.
deal," Filenko says, "we've got the time down to when this occurred
where only one person was responsible, and that is you. You've changed
your story six times and this is absolute crap. You are crossing the
line into intent. You're covering something up."
"I didn't do
anything," Calusinski says. "I'm telling you guys the truth, and it's
like I'm getting blamed."
"You need to
think, because you are running out of time," Filenko says. "We're not
going anywhere until we get the facts here."
"I know how hard
and frustrating it is to have one baby, let alone eight," Curran says.
At that point,
Calusinski began to give her confession, first admitting she was
frustrated "because he kept wanting to be held."
"You had a
momentary lapse in judgment. … You were angry," Curran says.
"I was angry,"
Calusinski repeats. "The kids were driving me up a wall while (a
co-worker) was doing the dishes, and I put him down and his head hit
on the ground."
"What we think
happened here is … all the other babies are screaming, you've got Ben
in your hands, he's acting up, you throw him to the floor," Curran
frustrated," Filenko says.
"Yes I did,"
Calusinski says. "I was really frustrated because all the kids were
screaming behind me."
"Why did you lie
to us before?" Curran asks.
"I was scared,"
she says. "I'm very sorry."
Curran asks her
if she feels better, and she says yes.
questioning ends, Calusinski tells Curran she just wants to call her
parents and go see her puppy. She asks if this is "going to go on my
thing we're going to have to determine," Curran responds. "The main
thing is, you told the truth."
The judge is
expected to rule in the coming weeks on a defense motion to quash
Calusinski's arrest and suppress evidence at her trial.