Unraveling the Case Against Melissa

Summary

48 Hours: Unraveling the Case Against Melissa

Episode Summary: In the gripping episode titled "Unraveling the Case Against Melissa," CBS News’ "48 Hours" delves deep into the contentious and emotionally charged case of Melissa Kaluszynski. Convicted of the first-degree murder of a 16-month-old child, Ben Kingan, whom she cared for at an Illinois daycare center, Melissa has long maintained her innocence. This episode meticulously examines the evidence, courtroom battles, and the relentless fight by Melissa and her attorney, Kathleen Zellner, to overturn what they claim is a wrongful conviction.

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Introduction: The Beginning of a Tragic Case

The episode opens with Erin Moriarty introducing the listeners to Melissa Kaluszynski’s harrowing journey. Melissa was sentenced to 31 years in prison in 2009 for the death of Ben Kingan, a toddler under her care at the Minisubi Daycare in Lincolnshire, Illinois. From the outset, Melissa and her supporters have consistently argued that her conviction was unfounded.

Melissa Kaluszynski [00:06]: "I just want her home."

The Day of the Incident: January 14, 2009

Melissa recounts the events of that fateful day. Working as a teacher’s assistant, she noticed something was wrong with Ben late in the afternoon. Upon checking, Melissa found Ben unresponsive with orange foam coming from his nose. She immediately called for help and began CPR alongside her sister, Crystal Kaluszynski, who was also present.

Melissa Kaluszynski [07:22]: "He didn't look right. I took his little hand and I touched his hand. And I'm like, Ben, Ben."

Despite their immediate response, Ben was pronounced dead an hour later. The tragedy set off an intense investigation.

Investigation and Arrest: Pressure and a False Confession

Following Ben's death, investigators commenced their probe, leading to Melissa’s interrogation. After over nine hours without legal representation, Melissa made a confession that she would later retract, asserting its falsity.

Melissa Kaluszynski [03:53]: "With just a confession."

Melissa's confession was the cornerstone of the prosecution's case. However, there was no corroborating evidence to support her admission of aggravated battery and first-degree murder.

Melissa Kaluszynski [04:02]: "It's clear that she killed Benjamin."

The Trial: Conflicting Evidence and Testimonies

Melissa’s trial in November 2011 became a battleground of conflicting testimonies. The prosecution, represented by Matthew DeMartini and Steven Scheller, leaned heavily on the confession and alleged medical evidence indicating a skull fracture caused by trauma.

Dr. Manny Montes [19:05]: "He examined the body and felt the fracture with his bare hands."

In contrast, the defense highlighted a previous head injury Ben sustained three months earlier, suggesting that the skull fracture observed was from an older injury, not related to Melissa. This discrepancy was pivotal yet controversially handled during the trial.

Paul DeLuca [15:40]: "Melissa was not even working there."

Despite defense efforts, the jury convicted Melissa after six hours of deliberation.

Melissa Kaluszynski [19:22]: "My heart sunk. I know I didn't do this."

Post-Conviction Appeals: Unearthing New Evidence

Following her conviction, Melissa's attorney, Kathleen Zellner, sought to overturn the verdict by presenting new evidence. In 2012, Dr. Thomas Rudd, the Lake County coroner, reviewed the autopsy and identified signs of an old injury that had been previously overlooked by Dr. Yupil Choi, who had testified during the trial.

Melissa Kaluszynski [19:50]: "I saw a membrane, and I thought."

Further investigations revealed that the X-rays provided to the defense attorney were manipulated, making it impossible to discern any skull fracture. This revelation suggested potential misconduct by the prosecution or coroner's office.

Andrew Garrett [28:58]: "Somebody went in and they altered the contrast to make it look like that on screen."

Despite these findings, an evidentiary hearing in 2016 did not yield a favorable outcome for Melissa, as the court sided with the prosecution’s stance that the evidence was not substantially new.

Clemency Petition and Ongoing Struggle

Undeterred, Zellner filed a clemency petition in April 2024, appealing directly to Illinois Governor J.B. Pritzker and the Prisoner Review Board. This petition highlighted the manipulated evidence and questioned the validity of Melissa’s confession, emphasizing the psychological vulnerabilities that may have led to a false confession.

Melissa Kaluszynski [37:57]: "The confession of Martin is worthless."

However, Lake County State's Attorney Eric Reinhardt opposed the petition, asserting there was no new evidence to substantiate claims of innocence.

Melissa Kaluszynski [41:58]: "Totally. I believe he thinks in his heart that she's innocent."

During the hearing on July 9, 2024, testimonies from former daycare employees and forensic experts bolstered Melissa’s claims of innocence. Notably, Dr. Robert Zimmerman, a pediatric neuroradiologist, affirmed that if a skull fracture had existed, it would have been clearly visible in the X-rays.

Dr. Robert Zimmerman [26:50]: "It wasn't there on the X ray, so I don't think he could have actually seen it."

Despite compelling arguments, the Prisoner Review Board made a confidential recommendation, maintaining Melissa’s incarceration. Governor Pritzker has yet to act on the recommendation as of the episode’s release.

Impact on Families and the Quest for Justice

The episode poignantly captures the emotional toll on both Melissa and Ben’s family. While Melissa’s parents continue to campaign for her release, Ben’s parents vehemently oppose any clemency, seeking closure for their loss.

Amy Kingan [42:47]: "Where is the justice for Beth and for Andy and myself and our surviving children?"

Melissa remains steadfast in her fight for freedom, asserting her innocence and contending that justice has eluded her while Ben’s family continues to seek answers.

Melissa Kaluszynski [43:34]: "I didn't do this. They had absolutely nothing."

Conclusion: A Case Still Unresolved

As the episode concludes, Melissa's fate hangs in the balance. With new forensic evidence casting doubt on the original conviction, her supporters remain hopeful that justice will eventually prevail. Meanwhile, the unresolved questions surrounding Ben Kingan's death highlight potential flaws in the criminal justice system, emphasizing the need for continual scrutiny and advocacy for those who may have been wrongfully convicted.

Melissa Kaluszynski [45:27]: "We're going to keep on until she comes home."

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Notable Quotes:

• Melissa Kaluszynski [03:53]: "With just a confession."
• Dr. Manny Montes [19:05]: "He examined the body and felt the fracture with his bare hands."
• Andrew Garrett [28:58]: "Somebody went in and they altered the contrast to make it look like that on screen."
• Melissa Kaluszynski [37:57]: "The confession of Martin is worthless."
• Dr. Robert Zimmerman [26:50]: "It wasn't there on the X ray, so I don't think he could have actually seen it."

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Final Thoughts: "Unraveling the Case Against Melissa" serves as a compelling exploration of a potential miscarriage of justice. Through exhaustive investigative journalism, "48 Hours" sheds light on the complexities of the legal system, the fragility of truth, and the enduring hope for redemption and exoneration.

Transcript

[Melissa Kaluszynski]

Wondery subscribers can listen to this podcast.

[Erin Moriarty]

Ad free right now.

[Melissa Kaluszynski]

Join Wonder plus in the Wondery app.

[Erin Moriarty]

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[Melissa Kaluszynski]

But the truth is, attacks on reproductive.

[Erin Moriarty]

Health care, including abortion, are only intensifying. That's why your gift to Planned Parenthood is so important right now. No matter the battle, no matter the stakes, no matter what Planned Parenthood is there. Protect our rights.

[Melissa Kaluszynski]

Protect our healthcare.

[Erin Moriarty]

Make your gift to planned [e-mail] Protect. This is a mini meditation guided by Bombus. Repeat after me. I'm comfy. I'm cozy. Cozy. I have zero blisters on my toes. Blisters. And that's cause I wear Bombus the softest Socks, underwear and T shirts that give back. One purchased equals one donated. Now go to bombus.com wondery and use code wondery for 20% off your first purchase. That's b-s.com wondery and use code Wondery at checkout. Hello, Melissa. Hi, Erin. It's been boy more than a decade since I first met you. When we first met, did you ever think you'd still be here this long?

[Melissa Kaluszynski]

No. Why am I still in here? I just don't understand. You may remember in 2009, Melissa Kaluszynski was working at a Lincolnshire daycare.

[Erin Moriarty]

She was given 31 years in prison.

[Melissa Kaluszynski]

For the death of a 16 month old who was in her care. Since then, she and her supporters have been fighting back, calling this a wrongful conviction.

[Erin Moriarty]

Melissa, it hurts.

[Melissa Kaluszynski]

She doesn't belong there. She's the kind of person that would take her shirt off her back and help other people.

[Erin Moriarty]

This is my baby. This is my youngest.

[Melissa Kaluszynski]

I just want her home. I used to work at the Minisubi daycare. I think it was definitely more than a job to her. The kids were her number one priority. I feel like the kids brightened her day.

[Erin Moriarty]

Do you believe that Melissa Kaluszynski had anything to do with Ben Kingan's death?

[Melissa Kaluszynski]

Zero. She had nothing to do with it. I am Melissa Kalusinski's current attorney. She loved Ben. Ben loved her. What she told the police was that she threw him to the floor. You threw him on the floor? Yeah. Show us how hard you threw him on the ground like that.

[Erin Moriarty]

Did you hurt that baby?

[Melissa Kaluszynski]

No, I did not. I would never do that. You got her isolated in a small room with these two men for hours. She's trying so hard to be the good girl, the compliant girl. I want to help you guys so much. She's not equipped to deal with a situation like that. We're not going anywhere until we get the facts here. The only way for me to get out was to make a confession. A false confession.

[Erin Moriarty]

Is there any evidence that corroborates the confession that Melissa made?

[Melissa Kaluszynski]

Zero.

[Erin Moriarty]

We would never take someone to trial.

[Melissa Kaluszynski]

With just a confession.

[Erin Moriarty]

This child had a fractured skull. There was extensive injuries to this child internally.

[Melissa Kaluszynski]

It's clear that she killed Benjamin.

[Erin Moriarty]

Do you believe there was a skull fracture?

[Melissa Kaluszynski]

No, there is no fracture. The evidence had been manipulated. If I take these sliders here, you can manipulate this photo. So somebody went in and they altered the contrast to make it look like that on screen.

[Erin Moriarty]

Somebody took X rays that were completely clear and turned them into unreadable images?

[Melissa Kaluszynski]

Yes. I can't think of an innocent explanation.

[Erin Moriarty]

So you're saying that either the prosecutor's office or the coroner's office, but somebody representing the state did this?

[Melissa Kaluszynski]

Yes. Yes. A former daycare worker convicted of killing a toddler tries again today to be released from prison. Her case was before the Prisoner Review Board in an effort to get clemency. People have to know the truth. I have to keep pushing, fighting, no matter how much it hurts. I want people to know I'm innocent.

[Erin Moriarty]

Erin Moriarty reports. Unraveling the case against Melissa. Melissa Kaluszynski has served 16 years of a 31 year prison sentence for the death of Benjamin Kingan, a 16 month old whom she cared for at an Illinois daycare center. She has long insisted she is innocent.

[Melissa Kaluszynski]

This is not where I belong. I'm gonna continue to fight no matter what. Cause I did not do this.

[Erin Moriarty]

We've been covering this case for more than a decade. And over the years, Melissa's appeals have failed. But she and her attorney, Kathleen Zellner, are not backing down now. They're taking their fight out of the court system and straight to the Governor of Illinois, J.B. pritzker, and his Prisoner Review Board.

[Melissa Kaluszynski]

We're asking them to declare that she's actually innocent and release her. We are also saying commuter sentence.

[Erin Moriarty]

The story began on January 14, 2009. Melissa, then 22 years old, was working as a teacher's assistant at the Minisubi Daycare in Lincolnshire, an affluent suburb of Chicago. Ben Kingan attended daycare there, along with his twin sister and their two older siblings.

[Melissa Kaluszynski]

I came to work and I saw Ben. He was fine, normal, happy, playful.

[Erin Moriarty]

Late that afternoon, after the kids were fed a snack and cleaned up, Melissa says she put Ben down on the Carpet. And he crawled into his bouncy seat on the floor.

[Melissa Kaluszynski]

He's sitting in his bouncy chair playing with his blanket. And he was starting to kind of fall asleep, which was normal.

[Erin Moriarty]

The teacher working with Melissa stepped out of the room briefly, leaving Melissa alone with the children. That's when Melissa says she noticed something wrong with Ben.

[Melissa Kaluszynski]

He didn't look right. I took his little hand and I touched his hand. And I'm like, ben, Ben. He did not wake up at all. I saw orange foam coming out of his nose, and I'm sorry.

[Erin Moriarty]

Melissa called for help. Her older sister, Crystal Kaluszynski, also worked at the daycare at the time.

[Melissa Kaluszynski]

I hear on the intercom, someone help me. Help me, help me. I ran in, then started CPR immediately.

[Erin Moriarty]

What was that like for you, Crystal?

[Melissa Kaluszynski]

I dream about it a lot. Like, I see it in my, you know, my head.

[Erin Moriarty]

911 was called. I have a child who was.

[Melissa Kaluszynski]

Who's foaming, who's not breathing.

[Erin Moriarty]

Paramedics responded. Ben was taken to the hospital. He was pronounced dead an hour later.

[Melissa Kaluszynski]

Me and my sister fell to the floor, and we're just bawling. What happened to him and how, I don't understand.

[Erin Moriarty]

An investigation was launched, according to this police report. During an autopsy, the pathologist, Dr. Yupil Choi, told a detective that he observed a skull fracture, extensive bleeding inside Ben's head, and that the injury was caused by another person using strong force within hours prior to Ben's death. And yet Ben had no cuts or obvious wounds on the outside of his body, no serious bruises. The pathologist listed the autopsy as pending further studies. Police brought in the daycare workers who had been with the toddler on the day of his death.

[Melissa Kaluszynski]

Somebody did something.

[Erin Moriarty]

Determined to find out what happened to Ben. After Melissa was read her rights. It's routine and protocol for U.S. detectives began pressing her for answers.

[Melissa Kaluszynski]

I have a good idea that you've seen what happened or you were involved with what happened because you were the only one in the room.

[Erin Moriarty]

At the onset of this, Melissa denied over and over again, more than 60 times doing anything to Ben.

[Melissa Kaluszynski]

I never put my hands on there. I did not drop him.

[Erin Moriarty]

But the detectives didn't stop.

[Melissa Kaluszynski]

You're there. It's not like there were 50 people in that room with you.

[Erin Moriarty]

All these years later, Melissa still remembers what it was like being in that room.

[Melissa Kaluszynski]

They weren't listening to anything I said.

[Erin Moriarty]

After nine hours under pressure and without an attorney, Melissa changed her story. She said she thought if she told the investigators what they wanted to hear they would let her go home.

[Melissa Kaluszynski]

We're not going anywhere until we get the facts here. The only way for me to get out was to make a confession. A false confession. I wasn't thinking at all.

[Erin Moriarty]

You weren't thinking of the consequences of doing something like that?

[Melissa Kaluszynski]

No. All I could think about was just going home. He starts acting up and you get mad at him and you throw him on the floor. You threw him on the floor? Yeah. Really hard.

[Erin Moriarty]

When Melissa was taken to another station for booking, she repeated the same story to another investigator. After spending 14 hours with police, Melissa Kaluszynski was arrested for the murder of Benjamin Kingen. Even though she almost immediately took back back the story she told police.

[Melissa Kaluszynski]

No, I'm innocent.

[Erin Moriarty]

Melissa's parents, Paul and Cheryl Kaluszynski, still remember receiving the news. And I said, what did you think? Possibly not at all. She had hurt this baby.

[Melissa Kaluszynski]

Nope. Nope.

[Erin Moriarty]

She is the kind of person that would never harm anybody, never put her hand on someone else's child. But Melissa had told investigators that she did. And after that, the manner of death on Ben's death certificate was listed as homicide. Law enforcement announced they had solved the case.

[Melissa Kaluszynski]

Ms. Kalzinski admitted to police that she had taken the infant boy and thrown him on the ground. They made her look like a bad person and she's not that type of a person.

[Erin Moriarty]

Melissa's family would make it their mission to clear her name.

[Melissa Kaluszynski]

My parents sold everything that they had. I put all my effort into getting her freed.

[Erin Moriarty]

They had no idea how much of a fight they were in for UFO lands in Suffolk. And that's official, said the News of the World. But what really happened across two nights in December 1980 when US servicemen saw mysterious lights in the forest near RAF Woodbridge and claimed to have had a close encounter with an actual craft?

[Melissa Kaluszynski]

Encounters, a new podcast available exclusively on Wondery plus, takes a deep dive into one of the most famous and still unresolved UFO encounters to ever take place in the uk. Featuring shocking testimony from first hand witnesses, hosts, journalist, podcaster and UFO researcher Andy McVillan. That's me. And producer L. Scott. Take us back to the nights in question and examine all of the evidence and conflicting theories about what was encountered in the middle of a Snowy Suffolk Forest 40 years ago.

[Erin Moriarty]

Are we alone? Encounters is a podcast which is going to find out. Listen to Encounters exclusively in ad free on Wondry. Join Wondry plus in the Wondry app or in Apple podcasts.

[Melissa Kaluszynski]

He was hip hop's biggest mogul.

[Erin Moriarty]

The man who redefined Fame, fortune, and the music industry.

[Melissa Kaluszynski]

The first male rapper to be honored on the Hollywood Walk of Fame, Sean Diddy Combs.

[Erin Moriarty]

Diddy built an empire and lived a.

[Melissa Kaluszynski]

Life most people only dream about. Everybody know ain't no party like a Diddy party.

[Erin Moriarty]

So, yeah, that's what's up. But just as quickly as his empire rose, it came crashing down. Today I'm announcing the unsealing of a.

[Melissa Kaluszynski]

Three count indictment charging Sean Combs with racketeering, conspiracy, sex trafficking, interstate transportation for prostitution. I was up and I hit rock bottom, but I made no excuses.

[Erin Moriarty]

I'm disgusted.

[Melissa Kaluszynski]

I'm so sorry. Until you're wearing an orange jumpsuit, it's not real. Now it's real.

[Erin Moriarty]

From his meteoric rise to his shocking fall from grace from law and crime, this is the rise and fall of Diddy. Listen to the rise and fall of Diddy. Exclusively with Wondery.

[Melissa Kaluszynski]

He was a very healthy baby.

[Erin Moriarty]

Just a happy, happy little boy. In November 2011, nearly three years after the death of Ben Kingen, Melissa Kaluszynski went on trial for murder. The state argued that Ben was a perfectly healthy toddler leading up to his death. Matthew demartini and Steven Scheller prosecuted the case. How would you describe what the parents have gone through?

[Melissa Kaluszynski]

When somebody takes your child from you, I don't think there's any words to describe what they have gone through.

[Erin Moriarty]

Dr. Choi, the pathologist who conducted the autopsy, testified about that skull fracture he said he had seen and how he believed the child's injury was recent and consistent with having been thrown to the floor by someone. But Melissa's trial attorney, Paul DeLuca, told the jury about a head injury Ben had previously received. It was noticed at the daycare three months earlier.

[Melissa Kaluszynski]

Melissa was not even working there.

[Erin Moriarty]

At the daycare center after Ben's death, multiple people, including daycare teacher Nancy Callinger, told investigators about it. We called the mom. The mom called the doctor. But prosecutor Stephen Scheller argued that the earlier injury was insignificant.

[Melissa Kaluszynski]

The pediatrician actually examined Benjamin's head. It felt around, said there was no issues, that mom should just keep an eye on him.

[Erin Moriarty]

Ben never had an issue after that. That's not what defense experts said. They noted that after the injury, there were possible signs of head trauma. Medical records showed that in the days after the injury, Ben was lethargic and had a persistent fever. And another daycare employee, Holly, who asked that we identify her by her first name only, testified for the defense about the last time she saw Ben. Two days before his death, Melissa walked.

[Melissa Kaluszynski]

Into the room and she was holding Ben, and she said, like, he's not feeling well. And it was almost immediately after she said that that he threw up, like.

[Erin Moriarty]

Everywhere the next day. One day before he died, Ben was kept home from daycare. Prosecutor Matthew demartini argued it was a stomach bug or a winter cold.

[Melissa Kaluszynski]

He was given Pedialyte and put to bed. He woke up the next day and he was fine.

[Erin Moriarty]

But the defense maintained that Ben's prior injury was so serious that any new impact could have had major consequences. And Ben did have a habit of throwing his head back.

[Melissa Kaluszynski]

He would be sitting on the ground and he would just kind of lunge his body backwards and hit his head. You know, I guess you'd call it like he was a headbanger.

[Erin Moriarty]

Nancy Callinger recalled that Ben had done that twice on the day of his death.

[Melissa Kaluszynski]

I put him on the floor, and he immediately threw himself on the floor, and then an airlock towards the sink.

[Erin Moriarty]

And he went south again. Prosecutors insisted that Melissa had hurt Ben.

[Melissa Kaluszynski]

This child did not explode or implode on his own.

[Erin Moriarty]

And they pointed to her confession.

[Melissa Kaluszynski]

She became frustrated holding Ben. She threw him to the floor.

[Erin Moriarty]

Prosecutors told the jury that the fall was so severe, it caused that skull fracture. At trial, they mentioned a skull fracture more than 30 times. But was there one? While most of the experts who testified from both sides agreed there appeared to be a fracture in autopsy photos, one defense expert said she couldn't say for sure. And according to Melissa's attorney, Paul DeLuca, the X Rays the prosecution had provided before the trial were unreadable.

[Melissa Kaluszynski]

Before trial, I said, do we have any better images? And it was no.

[Erin Moriarty]

The state's final witness, pathologist Dr. Manny Montes, gave the most vivid and damaging testimony at trial. He said he examined the body and felt the fracture with his bare hands.

[Melissa Kaluszynski]

Dr. Montez said he put his finger in the skull and through the fracture, I mean, it was devastating.

[Erin Moriarty]

The jury deliberated for six hours before convicting Melissa Kaluszynski of aggravated battery of a child and first degree murder.

[Melissa Kaluszynski]

My heart sunk. I know I didn't do this.

[Erin Moriarty]

Melissa's family remained determined to prove her innocence.

[Melissa Kaluszynski]

I didn't accept the verdict.

[Erin Moriarty]

I knew it was wrong. And in 2012, a year after the conviction, Dr. Thomas Rudd, the then newly elected Lake county coroner, agreed to review the autopsy evidence at the urging of Melissa's trial attorney.

[Melissa Kaluszynski]

I saw a membrane, and I thought.

[Erin Moriarty]

My God, what do you mean when you say you saw a membrane?

[Melissa Kaluszynski]

You see a scab similar to what forms on your skin, except it's in the brain.

[Erin Moriarty]

This is a slide of a part of this infant's brain. Correct. By definition, if you have a membrane.

[Melissa Kaluszynski]

You have an old injury.

[Erin Moriarty]

At Melissa's trial, Dr. Choi had told the jury he observed no sign of an old injury. But according to Dr. Rudd, Dr. Choi had simply missed it. He called in Dr. Nancy Jones, a well regarded pathologist, for a second opinion, and she agreed with Dr. Rudd and noted that the old injury had been healing for about two, two or three months, a timeframe consistent with that bump on Ben's head that was noticed at daycare.

[Melissa Kaluszynski]

How they let that go is beyond me.

[Erin Moriarty]

Like the defense experts at trial, doctors Jones and Rudd believe that the old injury was further exacerbated by Ben's head banging.

[Melissa Kaluszynski]

The added fluid of the recent injury pushes that brain down and shuts down the breathing system that is the cause.

[Erin Moriarty]

Of the child's death. It was the old injury. The old injury was massive. Dr. Rudd phoned the now retired Dr. Choi, who signed a sworn affidavit conceding that he had missed that Ben had suffered an old injury. But he crossed out the word significant. And when asked if he would have changed his testimony at trial, Dr. Choi.

[Melissa Kaluszynski]

Said, no, there's no indication that anything in there is significant.

[Erin Moriarty]

But Dr. Rudd suspected that Dr. Choi may have also been wrong about another major issue in the case, that alleged skull fracture.

[Melissa Kaluszynski]

What should have been done was that whole section should have been cut out.

[Erin Moriarty]

To look under the microscope to see.

[Melissa Kaluszynski]

If in fact it is a skull fracture. And they didn't.

[Erin Moriarty]

Dr. Rubb believed what Dr. Choi and the other medical experts thought was a skull fracture may have instead been a normal part of Ben's growing skull. But he couldn't prove it. Then in 2015, Melissa's father said he received an anonymous call that there was a set of X rays at the coroner's office that had never been turned over to the defense. When Dr. Rudd's staff searched the computer archives, archives, they came across these startling images that were never shown at trial. I was dumbfounded. There's definitely no skull fracture here.

[Melissa Kaluszynski]

I've shown this to various pathologists and a radiologist.

[Erin Moriarty]

They've all called me and say there.

[Melissa Kaluszynski]

Is no skull fracture in this child at all.

[Erin Moriarty]

In 2015, four years after Melissa Kaluszynski's conviction and shortly after those clear X rays of Ben Kingham were found, Dr. Rudd changed the manner of death on Ben's death death certificate from homicide to undetermined. By this point, defense attorney Kathleen Zellner had taken on Melissa's case.

[Melissa Kaluszynski]

I don't know of a case in America where someone's serving a 31 year prison sentence for a death that was undetermined.

[Erin Moriarty]

Zellmer, who has built a career on getting the wrongfully convicted out of prison, was intent on getting Melissa's conviction overTurned. And in 2016, Melissa was granted an evidentiary hearing to present what Zellner argued was new evidence before Judge Daniel Shanes, the same judge who presided over Melissa's trial.

[Melissa Kaluszynski]

The new evidence was that the images that had been given to Paul DeLuca had been darkened.

[Erin Moriarty]

Remember, the state gave Melissa's trial attorney Paul DeLuca, a dangerous containing these dark, unreadable X rays before trial. At the evidentiary hearing, Dr. Rudd testified about finding the clear X rays. X rays that he and other defense experts said showed no skull fracture. X rays that Zellner argued would have changed the outcome of Melissa's trial.

[Melissa Kaluszynski]

The skull fracture was the pivotal point in the state's case to convince the jury it was a homicide.

[Erin Moriarty]

But at the evidentiary hearing, prosecutors argued that this wasn't new evidence in the case. They said the disc provided to DeLuca had software that could enhance the X rays and that he simply didn't do enough to brighten them. DeLuca says he couldn't even open the software.

[Melissa Kaluszynski]

I call in a secretary, call in somebody else in the office. No one could get any better images.

[Erin Moriarty]

Zellner, with the help of an imaging expert, argued that it didn't matter what DeLuca did, that the X rays that he had been given had been modified and were inferior to the ones on the coroner's office computer. She also called a witness whom she believed raised more questions about the prosecution's case. Paul Foreman, the deputy coroner during Ben Kingan's autopsies. Foreman disputed the testimony of one of the most important witnesses at Melissa's trial, Dr. Manny Montes. Remember, Dr. Montez was the state's final witness who testified that he felt a fracture in Ben Kingon's skull. But Foreman, who said he was there when Montez King came to the coroner's office, testified that Montez never physically examined Ben's body or actually touched the child's skull. Could he have somehow gone in and looked at Ben's body, examined the body without you knowing?

[Melissa Kaluszynski]

No, I was with him from the moment he came in the door to the moment he left.

[Erin Moriarty]

The state tried to discredit Foreman by questioning his memory as well as his mental health. Foreman told us he had been treated for bipolar disorder and depression.

[Melissa Kaluszynski]

Well, it was a personal Attack.

[Erin Moriarty]

But Foreman wasn't the only defense witness who raised questions about Dr. Montez's testimony. Dr. Robert Zimmerman, a renowned pediatric neuroradiologist who examined the readable X rays, testified that if that skull fracture had existed, it would be clearly visible.

[Melissa Kaluszynski]

It wasn't there on the X ray, so I don't think he could have actually seen it.

[Erin Moriarty]

But prosecutors stood by their trial witnesses, Dr. Montez and Dr. Choi, who said they saw and felt a skull fracture. We reached out to both doctors for this broadcast, but they did not respond to our request for comment. When the evidentiary hearing ended, Judge Shanes ruled against Melissa.

[Melissa Kaluszynski]

She was dealt a devastating setback today in court. That's when a judge ruled she would not get a new trial.

[Erin Moriarty]

In his ruling, Judge Shanes stated that he didn't find Paul forman's testimony regarding Dr. Montez credible. And he agreed with the state that Paul DeLuca could have brightened the X rays and made them readable. It was another letdown for Melissa and her family.

[Melissa Kaluszynski]

You clearly made a mistake. I just don't understand.

[Erin Moriarty]

Zellner appealed the ruling, but again, a disappointment. And then four years later, in 2022, there was a development that few you saw coming. Eric Reinhardt, a new state's attorney in Lake county, the county where Melissa was convicted, had taken office. Zellner says he wanted more information on the discrepancy over the X rays, so he recommended she retain the digital forensics company Garrett Discovery.

[Melissa Kaluszynski]

We paid for them, but he recommended them.

[Erin Moriarty]

Andrew Garrett is the CEO of Garrett Discovery. Brian Bowman is a digital forensics expert who works for him. They concluded the X rays were manipulated by someone using a software tool used to view X rays. How did Paul DeLuca, the defense attorney, end up with these very dark pictures?

[Melissa Kaluszynski]

I can show you. So if I take these sliders here and I drag them all the way down or all the way up, you can manipulate this photo. So somebody went in and they altered the contrast to make it look like that on screen and then exported that.

[Erin Moriarty]

File on the coroner's computer.

[Melissa Kaluszynski]

On the coroner's computer.

[Erin Moriarty]

Bowman agrees there was little DeLuca could do.

[Melissa Kaluszynski]

The defense counsel could have adjusted some of the contrast on the JPEGs that they were given, but they couldn't make the images bigger, and they wouldn't be able to go in and zoom into the depth and have the clarity of the image that the original is.

[Erin Moriarty]

But if Ben Kingan's X rays were manipulated, who did it? In their report, Garrett and Bowman pointed to the state. You put in here the state adjusted the settings of the images that resulted in black washed out images. You're saying that either the prosecutor's office or the coroner's office, but somebody representing the state did this?

[Melissa Kaluszynski]

Yes. Yes. This is not a kiosk computer sitting in a lobby. This is in their custody and control. You have to be in the coroner's office to get access to this.

[Erin Moriarty]

What do you make of Garrett Discovery's findings? Chat now with the 48Hours team on.

[Melissa Kaluszynski]

Facebook and x Harvard is the oldest and richest university in America. But when a social media fueled fight over Harvard and its new president broke out last fall, that was no protection. Claudine Gay is now gone. We've exposed the DEI regime and there's much more to come. This is the Harvard Plan, a special series from the Boston Globe and WNYC's on the Media to listen. Subscribe to OnTheMedia wherever you get your podcasts. You don't believe in ghosts.

[Erin Moriarty]

I get it. Lots of people don't. I didn't either until I came face to face with them. Ever since that moment, hauntings, spirits and the unexplained have consumed my entire life. I'm Nadine Bailey.

[Melissa Kaluszynski]

I've been a ghost tour guide for.

[Erin Moriarty]

The past 20 years.

[Melissa Kaluszynski]

I've taken people along with me into.

[Erin Moriarty]

The shadows, uncovering the macabre tales that linger in the darkness and inside some of the most haunted houses, hospitals, prisons and more. Join me every week on my podcast, Haunted Canada as we journey through terrifying and bone chilling stories of the unexplained search for haunted Canada on Apple Podcast, Spotify, Amazon Music or wherever you find your favorite podcasts. In late 2022, when Lake County State's Attorney Eric Reinhardt met with the forensic experts experts he recommended and learned of their findings, attorneys Kathleen Zellner and Paul DeLuca were also there.

[Melissa Kaluszynski]

Eric was just indignant. He was saying whoever had done this manipulation should be held accountable. I believed after the meeting that he believed in Melissa's innocence and he was going to try to rectify this. I thought he was going to do.

[Erin Moriarty]

Something about it, but nothing happened, says Zellner and DeLuca. And as the months stretched on, Zellner decided to also look more closely at Melissa's confession.

[Melissa Kaluszynski]

That's the only evidence against her. There's nothing that tips this as being a homicide. Absolutely Nothing.

[Erin Moriarty]

Zellner asked Dr. Saul Kasson, a psychology professor and leading expert on false confessions, to review the case. Dr. Kassen had first analyzed the interrogation back in 2016 when he was a CBS News Consultant. He told us then and now that it appears police went into that room determined to get a confession.

[Melissa Kaluszynski]

The reason that we were called in in this incident is because Ben's skull was fractured. What we need to know right now is if this was done by accident or did somebody intentionally hurt him? Yeah, I would never put my hands on it. Her denials were emphatic. I never put my hand on the chest, ever. And they plowed over all of them. You know what? Medical evidence. It just doesn't lie.

[Erin Moriarty]

Okay, remember, a detective reported that during the autopsy, the pathologist, Dr. Choi, told him that Ben had a skull fracture and that the injury was recent and was caused by another person using strong force.

[Melissa Kaluszynski]

They did an autopsy on Ben. Yeah. We're talking a skull fracture. There's sometimes accidents happen, and, I mean, they're unavoidable. They launch into an accident scenario. I did not drop him. Did you lose your patience and hit him? No. Did you push him into a wall?

[Erin Moriarty]

After nearly six hours with investigators, you.

[Melissa Kaluszynski]

Didn'T come to work that day with the intent of hurting anybody.

[Erin Moriarty]

Melissa told them it was an accident.

[Melissa Kaluszynski]

Did you drop the baby?

[Erin Moriarty]

Yes.

[Melissa Kaluszynski]

I wasn't paying attention and slipped out of my hands.

[Erin Moriarty]

But that didn't satisfy the detectives who had left the room periodically to phone. Dr. Choi, that story you're giving us.

[Melissa Kaluszynski]

Is a lot of. There's no way. No way that that would have caused that traumatic of an injury. All you need to do is tell us the truth, and we're done. They're not saying nothing will happen to you, but it's implied.

[Erin Moriarty]

After nine hours in that room, the investigators were finally getting Melissa to tell a story that could account for a skull fracture.

[Melissa Kaluszynski]

You were angry. I was angry and aggravated. Show us how angry you were, and show us what happened, and let's just get this over with and move on. Okay. So I got angry. Yeah. And I went boom. But I'm gonna tell you something right now. This is very specific. This is gonna leave a specific mark, like a fracture.

[Erin Moriarty]

Then they gave Melissa a scenario of why she got angry.

[Melissa Kaluszynski]

We think in this situation, the other babies are screaming, screaming, crying.

[Erin Moriarty]

And what she did, he starts acting.

[Melissa Kaluszynski]

Up, and you get mad at him, and you throw him on the floor. You throw him on the floor? Yeah. She needs to get out of there. She can't take it anymore. I'm so sorry. Okay. We understand.

[Erin Moriarty]

The detectives who interrogated Melissa did not respond to our request for comment. Dr. Kassen raises concerns about how long Melissa was in that room. Approximately 10 hours. And how particularly vulnerable she was. About two and a half years before Ben Kingon's death, Melissa had reported she was raped.

[Melissa Kaluszynski]

She was enclosed in a small space, pinned down and sexually assaulted. Now she's pinned into the corner of her room. I can only imagine that while this would be normally stressful for the average person, it would be even more stressful for somebody with that history.

[Erin Moriarty]

The defense recently had Melissa evaluated by a psychologist and psychiatrist. They diagnosed her with post Traumatic stress disorder. They also assessed her as having borderline intellectual functioning. She scored at a 4.8 grand grade level in sentence comprehension, which could help explain why she believes she could go home even after she confessed to murder.

[Melissa Kaluszynski]

I'm just kind of curious. How long? Much more. Not much longer. We're on the phone right now. We're trying to get this done as.

[Erin Moriarty]

Quickly as possible because I just want.

[Melissa Kaluszynski]

To go home, spend time with my parents and my puppy. She had no idea what was happening. The confession of Martin is worthless. There are multiple reasons why she might have given this confession. This isn't just a vulnerable suspect. It isn't just interrogation tactics that are highly deceptive. It's both.

[Erin Moriarty]

The jury at Melissa's trial heard about her low iq, but the judge would not allow a false confession expert to testify. Zellner believes that testimony might have changed the verdict. If Melissa Kaluszynski had not walked into that room as she had insisted on attorney, would she be imprisoned?

[Melissa Kaluszynski]

No, absolutely not. They had absolutely nothing. There's no eyewitness, There was no video. The reason Melissa Kaluszynski got charged is she confessed.

[Erin Moriarty]

But if Melissa didn't harm Ben Kingan, what happened to the toddler? It raises more questions about that earlier injury, the one that was discovered at the daycare months before his death. Several employees there remembered a co worker. She was working there. And at the time when that happened.

[Melissa Kaluszynski]

Her name was Fondar.

[Erin Moriarty]

What I believe I only heard, I.

[Melissa Kaluszynski]

Didn'T see anything, is that she put.

[Erin Moriarty]

It in a crib and I believe he threw herself back. She claimed Brenda didn't testify at Melissa's trial and the defense was never able to track her down. But we did. A number of people have said that Ben was hurt when he was with you. Melissa Kaluszynski was interrogated for hours about the injury Ben Kingan received just before his death. But what about the daycare worker who was reported to be with Ben a few months earlier when he got a lump on his head? She didn't return our calls, but when we located her, she agreed to speak to us on the condition we obscure her face and identify her only by bright her first name. On October 27, 2008, there was a report of an injury on Ben King. And do you remember that? No, I don't. The way it's been described is, from some people, is that Ben was with you and you were putting him in the bed. They heard a bump and then he had a bump on the back of his head. No. Did that happen with you?

[Melissa Kaluszynski]

No.

[Erin Moriarty]

But you did stop working the very next day?

[Melissa Kaluszynski]

I did. I was just kind of tired of being there.

[Erin Moriarty]

I don't recall a bump and I.

[Melissa Kaluszynski]

Don'T recall ever bumping him.

[Erin Moriarty]

So do you say it didn't happen or you don't remember it? No, it didn't happen. Brenda has never been charged with harming Ben intentionally or accidentally. But attorney Kathleen Zellner is adamant the bend sustained a serious injury that day.

[Melissa Kaluszynski]

I think that his parents were misled by the daycare center about that incident.

[Erin Moriarty]

And according to these police reports, it wouldn't be the first time that the daycare allegedly tried to cover up the seriousness of a child's injury. The daycare was shut down by state authorities shortly after Ben died. In April 2024, more than 12 years after Melissa's conviction, with no success in the court system, Zellner filed this clemency petition asking Illinois Governor J.B. pritzker to exonerate Melissa or release her for time served.

[Melissa Kaluszynski]

I believe this is her best chance for freedom.

[Erin Moriarty]

Before a scheduled hearing, Lake County State's Attorney Eric Rinehart spoke to an attorney representing Ben Kingon's family. And then he wrote this letter to the Prisoner Review board stating his office strongly opposes Melissa's clemency petition. Were you shocked by that?

[Melissa Kaluszynski]

Totally. I believe he thinks in his heart that she's innocent.

[Erin Moriarty]

Reinhart would not do an on camera interview or speech to us on the record. But in that letter to the board, he stated that there is no new evidence in the case and that Melissa's petition for clemency does not establish innocence. On July 9, 2024, Zellner went before the Prisoner Review Board to make her case for Melissa's freedom.

[Melissa Kaluszynski]

What we want to do today is focus on who is this person and how did she end up in the position that she's in. Convicted of the first degree murder of a child.

[Erin Moriarty]

But also they are making an impassioned plea for Ben Kingan's parents.

[Melissa Kaluszynski]

My name is Amy Pingen and I am here with my husband Andy. We are the parents of Einseline Pingen, who was murdered when Melissa Kaliasinski proven to be around factory is called because of her actions. Andy and I are adamantly opposed to Melissa Kaliusinsky's release. We continue to read about how there is no justice for Melissa, but where is the justice for Beth and for Andy and myself and our surviving children? We hope that you, as the Prison Review Board and the governor, will deny your petition for clemency.

[Erin Moriarty]

Amy and Andy Kingan declined our request for an interview following Amy's statement. Zellner was then given the chance to respond.

[Melissa Kaluszynski]

There is no question that the death of a child is probably the worst thing that could ever happen to a parent. But the only way that a parent gets closure is with a trim. And the truth has not come out in this case. I know that she is innocent.

[Erin Moriarty]

After the hearing, it was up to the Prisoner Review Board to make a confidential recommendation to Governor Pritzker as to whether Melissa should be released. If you had a chance to talk to Governor Pritzker yourself, what would you say?

[Melissa Kaluszynski]

I would say, just please look at my case. I didn't do this.

[Erin Moriarty]

Holly, who worked at the daycare with Melissa, believes her. So much so that she wrote this letter to the governor.

[Melissa Kaluszynski]

From the time Melissa was arrested for Benjamin's murder, I've always thought she was innocent. The evidence does not point to Melissa. I can only imagine how Ben's family's gonna feel knowing that I'm saying Melissa's innocent. But an innocent person should not be in jail.

[Erin Moriarty]

When we first met the Kaluszynski family back in 2014, five years after Melissa's arrest, they still had her bedroom set up. Today, that room is still set up just as it was. Paul and Cheryl Kaluszynski haven't given up hope that their daughter will be home soon. She's Daddy's little girl.

[Melissa Kaluszynski]

We did everything again and we're just.

[Erin Moriarty]

Going to keep on until she comes home.

[Melissa Kaluszynski]

The Prisoner Review Board made their confidential.

[Erin Moriarty]

Recommendation to Governor Pritzker in January 2025.

[Melissa Kaluszynski]

There is no deadline for the governor to act. Join me Tuesday for postmortem from 48.

[Erin Moriarty]

Hours, where we'll dive even deeper into today's episode episode and answer your questions about the case.

[Melissa Kaluszynski]

If you like this podcast, you can listen ad free right now by joining Wondery plus in the Wondery app. Before you go, tell us about yourself by filling out a quick survey at wondery. Com. Survey.