Almost eight years ago, Calusinski, then 22, confessed to murdering 16-month-old Ben Kingan at an Illinois child care center where she worked.
She was convicted in November 2011 of first-degree murder and sentenced to 31 years in prison.
But Zellner, who took Calusinski’s case in 2013, is determined to set her free, arguing that Calusinski is behind bars for a crime she didn’t commit. A noted attorney in previous wrongful conviction cases, Zellner came to national prominence when she took on the controversial murder conviction of Making a Murderer‘s Steven Avery earlier this year.
“I took this case because I think she’s innocent,” Zellner tells PEOPLE of Calusinski in this week’s issue, on newsstands Friday. “There is no proof this was a murder.”
Prosecutors are positive they have the right person behind bars and have disputed how Calusinski has described the evidence in her case and her confession.
(Lake County State’s Attorney Mike Neheim and Ben’s parents declined to comment for this story.)
On Sept. 30, her request for a new trial, following an evidentiary hearing, was denied by Judge Daniel Shanes – who presided over her trial and sentence. Shanes cited a lack of new evidence and a lack of doubt about the verdict.
• For much more on Melissa Calusinski’s case, pick up this week’s issue of PEOPLE, on newsstands Friday.
Zellner is now appealing the judge’s ruling with the Illinois Appellate Court, and she is opening up to PEOPLE about her certainty in the case in face of these developments.
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‘She Didn’t Understand What She Was Saying’
After a nine-hour police interrogation soon after Ben’s death in January 2009, Calusinski, now 30, confessed to throwing the toddler to the ground in a fit of anger.
But Zellner argues that it was a coerced confession — which prosecutors dispute.
“Melissa thought she could go home if she told them [detectives] what she wanted to hear,” Zellner tells PEOPLE. “She didn’t understand what she was saying.”
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Zellner points to Calusinski’s low IQ and poor language skills. In court, it was reported she has an overall IQ of 82 with a verbal IQ of 74. IQs of around 100 are considered “average.”
“Until you’re in that situation with the same abilities, it’s very hard to be judgemental about it,” Zellner says.
“Because I’m involved with Steven Avery’s case, I’ve closely monitored the confession of Brendan Dassey,” she says, “and the techniques that the officers used to get both Brendan and Melissa to confess are remarkably similar.”
However, prosecutors have said Calusinski knew she could ask for an attorney during her questioning and was read her Miranda rights during the interrogation.
An Undetermined Cause of Death
Zellner says that the X-rays showing Ben died from a skull fracture were the “centerpiece of the case’s state.”
That was until Lake County Coroner Dr. Thomas Rudd saw an X-ray that, he says, showed no skull fracture, according to Zellner. Rudd ultimately changed Ben’s manner of death from homicide to “could not be determined.”
“Melissa was convicted because of those [original] X-rays and her confession,” Zellner says.
Prosecutors countered that there was no second set of X-rays — just a brightened version of the X-rays that defense attorneys were given before Calusinski’s trial. Further, they have argued, if Ben did have a previous injury it doesn’t mean that Calusinski didn’t cause his death with a new injury.
The X-rays are new evidence that show Ben’s death was not a homicide, she argues: “This is big.”