Crystal Calusinski remembers her sister Melissa Calusinski screaming over the intercom like it was yesterday.
Sitting at the front desk of the Minee-Subee child care center in Lincolnshire, Illinois, on Jan. 14, 2009, Crystal quickly ran into Melissa’s classroom and saw the unthinkable: 16-month-old Ben Kingan was in a bouncy chair with foam coming out of his nose.
“I still think about it all the time and in my dreams,” says Crystal, now 31, who then picked Ben up and went to the door to call for help before placing him on the changing table to perform CPR.
Responding paramedics transported Ben to the hospital, but it was too late. He died at 4:50 p.m., before his parents, Amy and Andrew Kingan, could even say goodbye.
Just two days later, Melissa, a 22-year-old teacher’s assistant, would be accused of his murder. She convicted in 2011 and sentenced to 31 years in prison.
Almost eight years after she was arrested, her attorney, Kathleen Zellner, tells PEOPLE there is new evidence that should set Melissa free and “there is no proof that this was murder.”
But prosecutors have dismissed Melissa’s claims of innocence and disputed how she has described the evidence in her case. A judge recently denied her a new trial, citing a lack of evidence.
Lake County State’s Attorney Mike Nerheim and Ben’s parents declined to comment for this story.
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How Melissa Was Convicted
One day after Ben death, forensic pathologist Dr. Eupil Choi, who performed Benjamin’s autopsy, said the boy had a skull fracture.
On his death certificate, filed on Jan. 23, 2009, the cause of death was listed as cranio-cerebral injuries and blunt trauma of the head, which authorities determined occurred when the “child was forcefully thrown to the floor by an adult child care worker.”
On Jan. 16, Melissa and other child care workers who were at the center the afternoon Ben died were taken for police questioning.
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After a nine-hour interrogation and after repeatedly denying that she harmed Ben, Melissa confessed to throwing him on the ground in a fit of anger. She says she immediately tried to take that confession back — that she didn’t mean what she said.
“People don’t know what I was put through in order for me to confess,” Melissa, now 30, tells PEOPLE in a prison interview in this week’s issue, on newsstands Friday. “When they interrogated me, it was horrible. I was terrified.”
Ben’s mother, Amy, spoke at her sentencing.
“He 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,” Amy said. “We wish so badly we could hold him in our arms just one last time.”
After the Kingans won a $2 million civil settlement with the center owner’s insurance company in 2010, Ben’s father spoke out publicly for the first time.
“Be an advocate for your children. Be careful with them,” Andrew said. “They are your most precious gift.”
After her confession and the evidence showing Ben had a skull fracture, Melissa had little faith she’d ever walk free.
That all changed last year.
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‘Convicted on Erroneous Evidence’
On June 10, 2015, Melissa’s father, Paul Calusinski, got an anonymous phone call from someone telling him to find a new set of X-rays at the Lake County Coroner’s Office. The man then quickly hung up.
Paul called the coroner, Dr. Thomas Rudd, who searched for every X-ray involving Ben’s death and found images he says were never seen by the defense.
“The X-ray shows that Ben didn’t have a skull fracture,” he tells PEOPLE. “Melissa was convicted on erroneous evidence.”
That one image led Rudd to change the manner of death from homicide to “could not be determined.”
Rudd sent the X-rays to forensic pathologist Dr. Nancy Jones, who concluded that Ben had suffered from a chronic case of cerebral swelling of the brain, caused by repetitive concussions that, Rudd says, Ben may have inflicted on himself.
With this revelation and a confession she says was coerced, Zellner is arguing that Melissa deserves a new trial.
But prosecutors insist that the X-rays are not new, just a digitally lightened version of the X-rays provided before the trial. They also contend that if Ben did have a previous injury, it doesn’t mean that Melissa didn’t cause his death with a new injury.
Melissa’s request for a new trial was denied on Sept. 30 by Judge Daniel Shanes, who presided over her trial and sentence, citing a lack of new evidence.
But Zellner has vowed to appeal the judge’s ruling to the Illinois Appellate Court.
“It’s not over yet,” Melissa told PEOPLE in prison. “I’m not going to give up the fight. There is still hope. I’m innocent.”
Melissa’s family has hope as well. Her father, who has never stopped lobbying for her conviction to be overturned, says that he won’t stop until his daughter is home.
“She left her entire family. She left her life,” he says. “She left everything behind for something she didn’t do.”