An attempt to set the date for an evidentiary hearing on whether Melissa Calusinski should receive a new trial after being convicted of the murder of a young child fell apart Friday when her defense could not provide information requested by the judge.
Judge Daniel Shanes, after ascertaining that defense attorneys could not produce the information he needed on what they planned to present at the hearing, continued the issue until Tuesday. Defense attorney Doug Johnson said he would have all the information requested by the judge by that time.
Shanes recently approved the defense team’s request for an evidentiary hearing in the case of Calusinski, now 29, who was convicted of murder in the death of 16-month-old Benjamin Kingan at the now-closed Minee Subee in the Park day care center in Lincolnshire, where she worked at the time.
In requesting the hearing, the defense cited “new evidence,” including X-rays, that it claims disproves the theory that Calusinski hurt the child and shows the likelihood that the toddler died from an existing brain issue or prior injury.
Shanes reacted with surprise Friday when Johnson, who stressed he is not the lead attorney for the defense team, said the defense planned to present five doctors as witnesses, and he estimated the testimony would take three days.
“I was thinking of an afternoon,” Shanes said. “I think it’s unprecedented to have a three-day hearing.”
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Shanes said it is possible that some of the doctors’ testimony will be redundant, which is not allowed in such hearings, and that issue may “sort itself out in the laundry.”
Both the defense and the state indicated they hope the hearing can be held in August, but it was unclear Friday whether Shanes’ trial schedule will allow that.
Assistant State’s Attorney Steve Scheller said he anticipated the state would need a day at most during the hearing for its response to the defense.
Shanes said he is envisioning a hearing that shouldn’t take more than two days.
The judge also said that in such an evidentiary hearing, “the burden of persuasion” is on the defense, and that what the defense is describing as new evidence must be found to “be of such character that it would likely change the outcome of the trial.”
Calusinski, who lived in Carpentersville at the time she was charged, was convicted in February 2012 and sentenced to 31 years in prison. She is incarcerated at the Logan Correctional Center.
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