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Woman Convicted of Murdering Toddler Seeks New Trial After Death Changed from Homicide to Undetermined

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An Illinois woman convicted of murdering a toddler at the child care center where she worked in 2009 — and who confessed to the crime — is seeking a new trial after the boy’s manner of death was changed from homicide to undetermined.

Melissa Calusinski, who worked at the Minee-Subee center in Lincolnshire, Illinois, was convicted of first-degree murder in November 2011 and sentenced to 31 years in prison in the death of 16-month-old Ben Kingan.

Central to the case against her, according to prosecutors, were Calusinski’s confession and findings that Ben had a skull fracture and died from recent head trauma.

Now, Calusinski, her family and her attorney are opening up to PEOPLE in this week’s issue about her claims of innocence.

Calusinski says her confession was coerced and, more importantly, that there is new evidence challenging that description of Ben’s injuries — arguments that prosecutors have disputed.

• For much more on Melissa Calusinski’s case, pick up this week’s issue of PEOPLE, on newsstands now.

Barrett Emke 2016
Barrett Emke 2016

The court has also ruled against her: In September, Calusinski’s request for a new trial was denied by Judge Daniel Shanes, who presided over her trial and sentencing. Shanes cited a lack of new evidence and a lack of doubt about the verdict.

But Calusinski’s attorney, Kathleen Zellner, plans to appeal the ruling.

Lake County State’s Attorney Mike Nerheim and Ben’s parents declined to comment for this story. Ben’s mother, Amy, previously spoke out in court about Calusinski.

• Watch the full episode of People’s Features: A Killer at Daycare? available now online on the new People/Entertainment Weekly Network (PEN). Go to PEOPLE.com/PEN, or download the PEN app on Apple TV, Roku Players, Amazon Fire TV, Xumo, Chromecast, iOS and Android devices.

Amy said at her sentencing, “[Ben] had so much life ahead of him, and she took it away from him and us. 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.”

Courtesy Kathleen Zellner
Courtesy Kathleen Zellner

Calusinski’s Case

Years after Calusinski’s conviction came a surprising development, her family says:

Her father, Paul Calusinski, got an anonymous phone call from someone telling him there were a “second set” of X-rays with the Lake County coroner that he needed to see.

Paul says he immediately called the coroner, Dr. Thomas Rudd, who found a set of X-rays that he says were not shown at trial.

Kathleen Zellner
Kathleen Zellner

Rudd tells PEOPLE the X-Rays show that Ben did not die from a skull fracture. Instead they show Ben had a prior injury that caused his death, Rudd says. He says the boy was a head-banger.

This led Rudd to change Ben’s manner of death from homicide to “could not be determined.” He says Melissa was convicted on “erroneous evidence.”

The skull fracture evidence was “the centerpiece of the case to prove that it was a homicide — not an accident,” Zellner says.

• Want to keep up with the latest crime coverage? Click here to get breaking crime news, ongoing trial coverage and details of intriguing unsolved cases in the True Crime Newsletter.

Prosecutors countered that the X-rays are not new, just a digitally lightened version of the X-rays provided before Melissa’s trial.

They have also argued that if Ben did have a previous injury, that doesn’t mean that Melissa didn’t cause his death with a new injury. (As she confessed to police after hours of questioning, she threw the boy to the ground in a fit of anger before he died.)

Kathleen Zellner
Kathleen Zellner

Speaking to PEOPLE recently in the Lake County Adult Corrections Facility in Waukegan, Illinois, Melissa described the moment her father told her that the “new X-rays” were found.

“I was so happy,” she said. “I kind of held in the tears. I basically waited until I got back to my unit to just cry to myself.”

It was on the basis of the X-rays that Melissa argued for a new trial, which was recently denied. But that hasn’t deterred her or her attorney.

“I told Melissa, before the ruling, ‘We will never get a fair hearing in Lake County, so expect this judge to rule against us,’ ” Zellner says, adding, “We are confident of a reversal.”