Attorney Kathleen Zellner
September 30, 2016 01:35 PM

Melissa Calusinski, the daycare worker convicted in 2011 of the first-degree murder of a 16-month-old boy, was denied a new trial Friday by an Illinois judge.

Judge Daniel Shanes said there was no new evidence presented in the case, saying Calusinski’s request for a new trial was an attempt to retry existing evidence. Calusinski’s attorneys will appeal the ruling with the state appellate court, Calusinski’s father, Paul Calusinski, has told PEOPLE.

On Jan. 14, 2009, Benjamin Kingan was found unresponsive in his bouncy chair at the Minee-Subee daycare in Lincolnshire, Illinois. Foam and blood were coming out of his nose.

Just an hour later, Benjamin was pronounced dead at the hospital before his parents could see him.

Calusinski, 22 at the time, was questioned on Jan. 16 and repeatedly denied hurting Benjamin 79 times. But after an interrogation that lasted over nine hours, she confessed to slamming his head on the ground in anger.

Dr. Eupil Choi, who performed the boy’s autopsy in Lake County, Illinois, determined Benjamin died from a skull fracture that was caused by a hard, flat surface and was consistent with having been thrown to the floor by someone.

Calusinski, who turned 30 on Tuesday, was convicted after a three-week trial in November, 2011, and sentenced to 31 years in prison.

“There’s no way to comprehend what Melissa has done to us. We will never recover from what she did,” Benjamin’s mother, Amy Kingan said after the sentencing, according to NBC News. “He had so much life ahead of him, and she took that away from him and us. We wish so badly we could hold him in our arms one last time.”

But since Benjamin’s death, Calusinski’s attorney’s and family have maintained she is innocent.

Courtesy Kathleen Zellner

Judge Daniel Shanes, who oversaw Calusinski’s trial, agreed in June to allow new testimony in an evidentiary hearing in August and September.

During the three-day hearing, defense attorneys cited what they say were newly discovered X-rays brought to Paul Calusinski’s attention by an anonymous phone call. Calusinski’s lawyers maintained Benjamin did not have a skull fracture the day he died but rather suffered from a prior head injury. They stressed that X-rays were dark and hard to read.

In 2015, after Lake County coroner Thomas Rudd saw those X-rays, he changed the official ruling on Benjamin’s cause of death from homicide to “undetermined.”

Lake County State’s Attorney Mike Nerheim declined PEOPLE’s request for comment, but Calusinski’s attorney Kathleen – who also represents Steven Avery from Netflix’s series Making A Murderer – says the evidence shows Calusinski is innocent. Zellner also maintains that her confession was coerced.

Zellner says the allegedly new X-rays contradict the original X-rays shown at trial, which she says were “the centerpiece of the case to prove that it was a homicide – not an accident.”

But prosecutors say that that the alleged new X-rays are not, in fact, new, and add that they don’t suggest Calusinski didn’t kill Benjamin. They maintain the images are merely brightened duplicates of X-rays made available two months prior to her trial, according to court documents.

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Calusinski’s family and their friends have been fighting for her release since the day she was arrsted.

“When Melissa told us that she didn’t hurt Benjamin, we believed her from day one,” Paul tells PEOPLE. “We know she’s innocent and the evidence shows that. She was framed for a murder.”

Paul adds, “Despite the news today, we’re not giving up. It’s a setback but we’re determined as ever. She’s doing time for no crime.”

Calusinski’s IQ was reported to be a 82, with a verbal of 74, classified as borderline intellectually functioning.

Zellner says her mental capacity has to do with why she confessed.

“Somebody more sophisticated, with better language ability, maybe that wouldn’t have happened,” she says. “She believed that she was going to go home if she just went along with the story that police were giving.”

Paul says his daughter always loved children and babysat children for years before she got the job at the daycare, where she worked alongside her older sister, Crystal.

“I’ve kept on fighting for her and she knows that. She knows she has supporters. I won’t stop until she’s home,” says Paul, who visits his daughter about twice a month at the Logan Correctional Center in Lincoln, Illinois.

In a statement to PEOPLE, Zellner says, “I told Melissa, before the ruling, ‘We will never get a fair hearing in Lake County so expect this judge to rule against us.’ We are pleased the judge made so many mistakes in his ruling and we are confident of a reversal.”

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