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New trial denied for woman convicted in day care center murder

Attorneys for the woman convicted last year of killing a boy at Lake County day care center failed to win her a new trial Thursday after arguing unsuccessfully that a key state witness perjured himself on the stand.

During his testimony in Melissa Calusinski’s trial in November, Dr. Manny Montez, who was consulted during the boy’s autopsy, said he was not certified by the American Board of Pathology because “I have not sat before the board for the test.”

According to records obtained through a subpoena, which was read in Lake County court Thursday, Montez took but did not pass the anatomic portion of the certification exam in September 2001. But he did not take a forensic sub-specialty portion of the exam.

Calusinski’s attorney, Paul DeLuca, said Montez was not being truthful when he said he had not sat for the exam, thus denying his client her right to a fair trial.

Prosecutors argued that Montez did not misrepresent his qualifications and that the outcome would have been the same even if the jury knew he failed the board test.

“He never claimed to be board-certified,” Assistant State’s Attorney Christen Bishop said. “He said, ‘I never sat for the test,’ singular. He didn’t lie. This fact would mean nothing to the jury.”

Montez, who has a contract to perform autopsies for the Lake County coroner, could not immediately be reached for comment.

But Lake County Coroner Artis Yancey said after Thursday’s hearing that he has no concern about Montez’s competence. Many pathologists lack board certification, Yancey noted.

“I think that Dr. Montez is one of the finest, most knowledgeable, well-credentialed forensic pathologists in the area,” Yancey said. “The county is lucky to have him working for us.”

Thursday’s hearing came four months after a jury found Calusinski, 25, guilty of first-degree murder in the 2009 death of Benjamin Kingan of Deerfield. According to testimony at the trial, Calusinski told police that she intentionally slammed the boy’s head to the ground out of frustration while working at the now-closed Minee Subee in the Park day care center.

In January, Calusinski’s attorneys requested a new trial, arguing that she falsely confessed to the crime.

During the trial, Montez testified that he was asked to do a “curbside consultation” on the autopsy performed on Benjamin on Jan. 15, 2009, by Dr. Eupil Choi, one of the office’s deputy coroners. Montez was called by the state as a rebuttal witness to bolster the claims made by other state witnesses.

Thursday, Judge Daniel Shanes agreed with the prosecution while denying the defense’s request for a new trial.

“I do not find that Dr. Montez lied,” Shanes said, adding he didn’t believe Montez’s testimony was enough to sway the outcome of the trial.

“This is a non-issue,” he said. “It would have had the effect of an insect hurtling itself down on an 18-wheeler while it is traveling down the highway. Shakespeare said it better when he entitled his play, ‘Much Ado About Nothing.’”

Montez performs “a significant amount” of autopsies for Lake County, Yancey said, and Montez has testified in several recent high-profile trials. According to court records, he charged the county $800 for two hours of testimony in the trial of Marni Yang, who was convicted of killing Rhoni Reuter while she was pregnant with the child of former Chicago Bears player Shaun Gayle.

Yancey lost the Democratic primary for the coroner’s office last week to Dr. Thomas Rudd, who has said he favors pushing the county away from an elected coroner – often not a doctor – toward an appointed medical examiner. Rudd favors employing a pathologist as a medical examiner who could perform autopsies and oversee the office.

On his campaign Web site, Yancey had touted his move to place Montez under contract, citing his “vast experience in the area of forensic pathology.”

Calusinski’s attorneys say they will appeal her conviction.

Tribune reporter Dan Hinkel contributed.

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