48 Hours - The Fight for Melissa

Episode Date: December 18, 2016

A day care worker says she loved kids, yet she's in prison for killing one. See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

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Melissa Kelyuzinski is innocent. She should be freed now. Tonight, new developments in the fight to free Melissa. She didn't do it. She's not a baby killer. She's a good kid. I would never do anything to a child. I would never do that, ever. Now, a new hearing could set her free. A suburban woman serving a 31-year sentence for the 2009 death of a toddler could get a new trial. I can't wait for my baby to come home. This is my time to let everybody know and for my lawyers to come home. This is my time to let everybody know and for my lawyers

to show everybody that I did not commit this crime. What she told the police was that she threw him to the floor. You threw him on the floor? Yeah, really hard. Show us how hard you threw him on the ground. I went like that. Melissa says the confession is false. I'm not going to tell her.

Nobody will understand unless you've been through it. People don't know the facts. The prosecution says Melissa fractured Ben's skull. This child had a fractured skull. There was extensive injuries to this child internally. It's clear that she killed Benjamin. The entire case was based on there being a skull fracture. How wrong were the state's medical witnesses?

They were very wrong. There's definitely no skull fracture here. Did someone tamper with Ben's x-rays? So this is the original. That's the tip. That's the original. This is what the defense team was given. This is what the defense team was given.

They were manipulated. And what our computer experts have been able to do is reveal how it was done. Why would someone want to do that? To obscure whether there was a skull fracture. Was a prosecution witness telling the truth? He talked about the violent trauma, the raggedy fracture. He touched it, he looked at it, it was unbelievable what he saw. The only problem is he never saw any of it. You believe he bent the truth to help the prosecution convict someone? I believe he flat out lied.

What does this revelation at this hearing mean for Melissa's case? Save her life. Save her from a life in prison. I'm Erin Moriarty. Tonight on 48 Hours, the fight for Melissa. Have you ever wondered who created that bottle of sriracha that's living in your fridge? Or why nearly every house in America has at least one game of Monopoly? Introducing the best idea yet.

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I'll be uncovering a story of abuse and the fight for justice that has brought a unique, lonely Pacific island to the brink of extinction. Listen to the Pitcairn Trials exclusively on Wondery Plus. Join Wondery Plus in the Wondery app, Apple Podcasts or Spotify. Every day, Melissa Kaliuzinski wakes up in an Illinois prison, a convicted child killer. I had nothing to do with it. And I'm going to keep continuing to say that, because I had nothing to do with Ben's death. In January 2009, 16-month-old Benjamin Kingan died after being in daycare. In 2009, 16-month-old Benjamin Kingan died after being in daycare.

Melissa, the last person to care for him, was found guilty of his murder two years later. Everybody knows that the conviction's rotten to the core. Attorney Kathleen Zellner has built a career out of getting the wrongfully convicted out of prison. She tackles high-profile cases like Stephen Avery's from making a murderer fame. Zellner is convinced Melissa didn't get a fair trial. She says she didn't do it. New evidence in this case. Important information that could shed new light on the death of Ben Kingan. Melissa is now at the center of a media and legal storm in Lake County, Illinois. Free Melissa! There are allegations of medical errors, evidence tampering, and even perjury. Before Melissa became a cause celeb, she was living a quiet life with her parents in a working class neighborhood outside Chicago.

We first interviewed her in 2014. My family's wonderful. I am the youngest of five altogether. Melissa's parents, Paul and Cheryl Kalyczynski. She's a kind-hearted person. She would just bend over backwards for anybody. Growing up, Melissa never got in any trouble, yet she stood out in other ways.

She sometimes had trouble expressing herself and understanding others. Melissa's sister Crystal says she was teased at school. What would kids say? Just mean things like, you know, you don't know this, you're stupid. She would come home crying sometimes off the bus. Kids would tease her.

But as she got older, Melissa found her calling. She wanted to be taking care of children. So when an opportunity later came up to work at the mini-Suebi Day Care Center with Crystal, An opportunity later came up to work at the mini Subie Daycare Center with Crystal. Melissa, then 22 years old, jumped at the chance to be a teacher's assistant. Just hearing them, little babies, it just makes my day, just being around them. One of the children in Melissa's care was toddler Benjamin Kingen. Ben, his twin sister, and two older siblings all attended the daycare center in Lincolnshire, an affluent Chicago suburb. January 14, 2009 started out as a typical day.

I came to work on Wednesday, and I saw Ben. He was fine, normal, happy, playful. I saw Ben. He was fine, normal, happy, playful. Around 3.30 p.m., 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. He's sitting in his bouncy chair, playing with his blanket, and he was starting to kind of fall asleep, which was normal. A teacher who was in the room stepped out briefly, leaving Melissa alone with the children.

Melissa says that's when she noticed something wrong with Ben. 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.

Melissa called for help, and Crystal rushed in and administered CPR. Crystal rushed in and administered CPR. Ben was taken to the hospital, but he was pronounced dead an hour later. Me and my sister fell to the floor and were just bawling. What happened to him and how, I don't understand. Ben's death was a mystery. He didn't have any cuts or obvious wounds, no serious bruises. But pathologist Yupil Choi would come up with an answer after two autopsies. Ben Kingan died from blunt force trauma of the head.

Dr. Choi said that Ben had suffered a skull fracture and massive brain hemorrhaging that happened that day. So investigators brought in the caregivers who had been with the toddler. Somebody did something to him. Crystal Koyuzinski was questioned for eight hours and eventually released. All you need to do is tell us the truth. But Melissa remained with police. What did they tell you had happened to Ben? That he died of a skull fracture.

You know 100 percent we know what happened, but we need you to tell us. Tell us what happened. Investigators read Melissa her rights. It's routine and protocol for us. her rights. And then, over and over, at least 79 times, she denied doing anything to Ben. I never put my hands up there. I did not drop them. I completely did not do. And I kept continuously repeating myself. Please don't make us drag everything out of you because it makes it seem like you're being deceitful to us. They were just continuously not believing me.

But after nine hours in that room, under pressure and without an attorney, Melissa confessed. He starts acting up, and you get mad at him, and you throw him on the floor. You throw him on the floor? Yeah. Really hard. Really hard? Yeah. She is taken to another station for booking and repeats the same story to another investigator. How hard did you throw him?

Like, I went like that. After spending 14 hours with police, Melissa was arrested for the murder of Benjamin Kingen, even though she almost immediately recanted her story. You know I'm innocent. The picture they put of Melissa on the news, she just looked horrible. The initial reaction from everybody is there's this horrible person that did this unspeakable act. Attorney Paul DeLuca knew he was facing a difficult battle from the moment he took on Melissa's case. It's such an emotional case. See, what happens is the jury is going to want to find somebody accountable for this.

want to find somebody accountable for this. But as DeLuca prepared for the upcoming trial, he became convinced that the medical evidence was wrong and that Melissa had given a false confession. I had full confidence that I was going to beat it because I knew I'm innocent. As a kid growing up in Chicago, there was one horror movie I was too scared to watch. It was called Candyman. The scary cult classic was set in the Chicago housing project. It was about this supernatural killer who would attack his victims if they said his name five times into a bathroom mirror. Candyman. Candyman? Now, we all know chanting a name won't make a killer magically appear, but did you know that the movie Candyman

was partly inspired by an actual murder? I was struck by both how spooky it was, but also how outrageous it was. We're gonna talk to the people who were there, and we're also going to uncover the larger story. My architect was shocked when he saw how this was created. Literally shocked.

And we'll look at what the story tells us about injustice in America. If you really believed in tough on crime, then you wouldn't make it easy to crawl into medicine cabinets and kill our women. Listen to Candyman, the true story behind the bathroom mirror murder, early and ad-free on Wondery Plus and the Wondery app. Hot shot Australian attorney Nicola Gaba was born into legal royalty. Her specialty? Representing some of the city's most infamous gangland criminals. However, while Nicola held the underworld's darkest secrets, the most dangerous secret was her own.

She's going to all the major groups within Melbourne's underworld, and she's informing on them all. I'm Marsha Clark, host of the new podcast, Informants Lawyer X. In my long career in criminal justice as a prosecutor and defence attorney, I've seen some crazy cases, and this one belongs right at the top of the list. She was addicted to the game she had created. She just didn't know how to stop. Now, through dramatic interviews and access, I'll reveal the truth behind one of the world's most shocking legal scandals.

Listen to Informant's Lawyer X exclusively on Wondery+. Join Wondery in the Wondery app, Apple Podcasts or Spotify. And listen to more Exhibit C true crime, early and ad-free right now. He was a very healthy baby. Just a happy, happy little boy. The state's theory was that Ben Kingham was a perfectly healthy 16-month-old when he died on January 14, 2009. Lake County Assistant State's Attorneys Steven Scheller and Matt DeMartini were part of the prosecution team.

How would you describe what the parents have gone through? When somebody takes your child from you, I don't think there's any words to describe what they have gone through. Melissa's trial began in November 2011. Prosecutors presented what they said was indisputable medical evidence. According to pathologist Dr. Choi, Ben suffered a skull fracture and massive brain bleeding on the day he died. There was a massive, massive catastrophic injury to this child. But the defense believed Ben had an old injury that contributed to his death.

The injury was discovered at daycare before Melissa started working there. A teacher, Nancy Callinger, told investigators she heard a noise while another worker was handling Ben. Callenger said Ben later woke up with an obvious injury. He got a bone in the back of his head. I mean, we called the mom. The mom called the doctor. I mean, we called the mom. The mom called the doctor. But prosecutor Stephen Scheller says that the injury in October 2008 was minor. The pediatrician actually examined Benjamin's head. It felt around. Said there was no issues that she felt needed to be addressed,

that mom should just keep an eye on him. Ben never had an issue after that. Not according to defense experts, they say that after that day, there were possible signs of head trauma. Medical records showed that Ben was lethargic, and Nancy Callinger had pointed out to investigators that Ben slept a lot. I know something about the pen that he was trying to say publicly. And just two days before he died, Ben threw up on Melissa. This was a big vomit. It was like nonstop. Prosecutor Matt DeMartini says Ben's vomiting two days before his death

was just a stomach bug or a winter cold. He was given Pedialyte and put to bed. He woke up the next day and he was fine. But the defense says Ben's prior injury was so serious that any new impact could have major consequences and Ben did have a habit of throwing his head back. He would sit Indian style and when he got angry he flipped himself back and he hit his head and he would do this over and over. Nancy Callenger recalled that Ben had done this twice, shortly before his death.

I put him on the floor, and he immediately threw himself on the floor. And then I walked towards the sink, and he threw himself again. But prosecutors rejected the defense theory. This child did not explode or implode on his own. The state maintains that Ben died only from injuries caused by Melissa, who was overwhelmed by crying babies that day. It's frustrating with all these kids because they're screaming, crying. She became frustrated holding Ben. She threw him to the floor.

And Melissa even said there was a witness. She said Nancy Callender was at the sink with her back to them. Yet the teacher told police she didn't hear anything. She picked him up like this, raised up, and slammed him to the ground. Those are her words, okay? She wouldn't listen. But Melissa said she did. You threw them on the floor?

Yeah. Prosecutors told the jury that the blow was so severe it caused a skull fracture. They mentioned the skull fracture more than 30 times. Defense attorney Paul DeLuca had little to counter it. These are the copies of the x-rays he was given by the state. When I opened these x-rays, my thought is, this is ridiculous. We have black x-rays. I'm laughing to myself. I can't believe this.

The last state witness at trial was pathologist Dr. Manny Montez. He told the jury in powerful testimony that he had examined the child's body himself and had felt the fracture with his own hands. He said he put his fingers actually through the hole. He said he could see through it. He kept saying this is a violent, traumatic, forceful injury. How damaging was that? It was terrible. It was terrible. It killed us. Melissa was found guilty of first-degree murder and sentenced to 31 years.

I just, I almost lost it. Melissa has long insisted she's innocent, but jurors heard her admit her guilt in her videotaped interrogation. And I went, boom. So why would Melissa confess to a crime she says she didn't commit? It took me years to wrap my head around the idea that somebody, short of having a gun to their head, would ever confess to a crime they didn't commit.

And yet, when you look at the database of known wrongful convictions, homicide cases in particular, where there is DNA to exonerate. 60% of them contain false confessions and evidence. Dr. Saul Kassin, a professor at John Jay College, has testified about false confessions in numerous cases, but the judge wouldn't allow any false confession testimony at Melissa's trial. We asked Dr. Kassin to analyze Melissa's trial. We asked Dr. Casson to analyze Melissa's interrogation. He is a CBS News consultant.

I don't look at a case like this and pretend to know whether she did something or not, but I have concerns. She's a vulnerable suspect. When the defense had Melissa's mental capacity tested, she showed extreme vulnerability to suggestion and scored at the bottom for verbal comprehension. I'm trying to think, what did I do?

And Dr. Casson says Melissa's long interrogation I had nothing to do with it. is worrisome. The average length of an interrogation is 30 minutes to two hours. This one goes nine hours. It's clear that long interrogations put innocent people at risk. Everybody has a breaking point. Hour after hour, Melissa denied she hurt Benjamin. I did not drop him. Yet the investigators ignored her denials. And that's not all. When they asked her to take a lie detector test.

It's called a polygraph examination. She immediately says yes. Not a problem. Is that something that you'd be willing to take after this? Professionally trained interrogators are led to understand that the innocent person who has nothing to fear and nothing to hide is more likely to say yes. Then they ask, you know, there are kids in the room who may be able to communicate. We have a specialist who speak with children. Do you think it would be a good idea to have that specialist talk to the children that were in the room?

Yes, I agree. If she has something to hide, she might go, uh-oh, really? I would think so. She says, yeah, I think that's a good idea. She acted just like an innocent person should act. They overlook the innocence cues. And I would argue that after hours and hours of denials, in each case the denial is met with a punishing rejection,

she figures out what she needs to do. We're not going anywhere until we get the facts here. I was just ready to get away from these men. And the script is clear. I do think an accident happened. Sixty-eight times the word accident or mistake or mistaken is made by the detectives to describe what likely happened here. And in fact it comes from them first?

Absolutely comes from them first. The idea that this is an accident. Did you hit his head by accident with something? No. We're not here to condemn you. We're not here to put you in jail. After nearly six hours with investigators, Melissa tells them it was an accident.

Because I had fully put them down, it kind of almost slipped when I dropped them. And he hit the chair. was an accident. But investigators don't accept her answer. They were convinced someone had deliberately hurt Ben that terrible day. There's no way that that would have cracked his skull. I'm not believing anything you're telling me now. A couple hours later, the tone is changing. And now the accident is more of a premeditated act. Suddenly the word frustrated

and angry makes its appearance. You didn't do anything to frustrate you? Was this something out of frustration? Something frustrated you. Something happened. After nine hours in that room,

Melissa finally breaks. They've made it clear that there's only one way out. We think in this situation, the other babies are screaming, crying, whatever. Investigators give Melissa a scenario of what she did and why she did it. He starts acting up, and you get mad at him, and you throw him on the floor. And she goes along with it. You throw him on the floor? Yeah. goes along with it. You throw them on the floor?

Yeah. Okay. Really hard. Really hard? Yeah. Melissa told us she truly believed that if she told investigators what they wanted to hear, they would all just go home. 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 quickly as possible. Because I just want to go home and spend time with my parents and my puppy. A few moments later, she goes, Now, is this going to be going on my record? Is this going to go on your record? Do you have any idea what's happening to you right now? Okay, so we're going to take a ride.

Dr. Kasson says the detectives coach Melissa to tell a story that matched the medical evidence. But what happens if the medical evidence was wrong? Normally a pathologist is not 100%, but I feel she's 100% innocent. Do you know your Miranda rights? Learn more on Facebook at 48 Hours. In 2012, Melissa Kalyuzinski had spent a year in prison when her father persuaded Dr. Thomas Rudd, the newly elected Lake County coroner, to review the autopsy evidence that had

helped to convict her. I was stunned. I could not believe what I was seeing because it was the exact opposite of what was written. At Melissa's trial, pathologist Dr. Choi told the jury that Ben Kingan did not have an old injury. But, according to Dr. Rudd, Dr. Choi had made a glaring error. I saw a membrane and I thought, my God. This is a slide of a part of this infant's brain. Correct.

This is a membrane. This is a. Correct. This is a membrane. This is a scar tissue. This is a scab, by definition. If you have a membrane, you have an old injury. Dr. Rudd was so flabbergasted that he called in Dr. Nancy Jones, a well-regarded pathologist who has performed more than 10,000 autopsies. She, too, saw evidence of an old injury, one that had been healing for about two or three months,

a time frame consistent with that bump the daycare workers noticed on Ben's head. How big was that old injury? Four inch by four inch. Isn't that significant to you? Huge. Hugely significant. And how they let that go is beyond me. Jones and Rudd believe this old injury was further exacerbated by Ben's headbanging and point to the evidence of brain swelling.

His head circumference was large. For the first year of his life, the size of Ben's head, the circumference, was consistently around the 50th percentile, compared to other children his age. But less than two months after the October injury, Ben's head circumference increased to the 75th percentile. At the time of his death, a few short weeks later, Ben's head measured in the 95th percentile. That is drastic. There's something wrong.

Doctors Rudd and Jones acknowledge that Ben did suffer another injury on the day he died, but it may have been a minor bump on the floor that caused that final fatal swelling of the brain. The added fluid of the recent injury pushes that brain down and shuts down the breathing system. That is the cause of the child's death. It was the old injury. The old injury was massive. Dr. Rudd knew he had to do something, so he called the now-retired Dr. Choi. Were you nervous about it? Yes. I thought for a

very long time, how will I do this? To Rudd's relief, Dr. Choi admitted he was wrong. He even signed a sworn affidavit conceding that, in my report and testimony, I missed that Ben had suffered an old injury. But he crossed out the word significant. Prosecutors Matthew DiMartini and Stephen Scheller say it doesn't change the case at all. There's no indication that anything in there is significant. And their boss, Lake County State's Attorney Mike Nierheim, points to a document in which Dr. Choi was asked

whether the finding of the old injury would have changed his testimony at trial, and he said no. If his mistake changed his ultimate opinion, which he hasn't said that it did, that would concern me. We're all learning how to walk. But Dr. Rudd suspected that Dr. Choi may also have been wrong about another major part of the state's case, that alleged skull fracture. The alleged fracture was right in the middle of the head and towards the right going one inch.

And there's no laceration there? There's no bruise there? None. None whatsoever. How do you fracture a skull without causing tissue damage to the skin above it? It's not possible. Dr. Rubb believes that what Dr. Choi may have actually seen was just a normal part of Ben's growing skull, but he couldn't prove it.

But in June 2015, that would suddenly change. Melissa's father said he received an anonymous call that there was a set of x-rays at the coroner's office that was never given to the defense. When Dr. Rudd's staff searched the computer archives, they turned up these startling images. What was your reaction when you first saw these? I was dumbfounded. when you first saw these? I was dumbfounded. According to Dr. Rudd, these x-rays are proof that Ben Kingan did not suffer a skull fracture.

There's definitely no skull fracture here. I've shown this to various pathologists, and a radiologist, they've all called me and say there's no skull fracture in this child at all. What the x-rays did confirm, says Dr. Rudd, was that Ben's head was abnormally shaped, which is a clear indication of brain swelling. His head looks like the old-fashioned light bulb. This is not a normal shaped skull of a 16-month-old child. In 2015, Dr. Rudd reclassified Ben Kingan's death from homicide

to undetermined. Ben's death may not have been a murder at all. It shocks me because if that be the case, why am I still locked up? Attorney Kathleen Zellner says the clear set of x-rays changes everything for Melissa, and in June 2015, filed a petition asking the trial judge to throw out Melissa's conviction. And this case screams that it's a wrongful conviction. Zellner contends that not only does she have new evidence that could have affected the outcome of the trial, but she charges that the x-rays given to the defense were manipulated. So this is the original. And she says she can prove it.

Ready for the shot! Ready for the shot! Ready for the shot! Ready for the shot! That was her high school and this is, my God, she's a grown woman now. Screwed up in jail. Paul and Cheryl Kowalczynski have had one goal since the day their daughter Melissa was arrested in 2009, to bring her home. She knows that we're doing everything we can. We do believe she will be coming home soon It's just a matter of time Although two higher courts have upheld Melissa's conviction. They are pinning their hopes on Kathleen Zellner She's pushing for an evidentiary hearing to present what she believes is new evidence before Judge Daniel Shaines, the same judge who had presided over Melissa's trial.

Evidentiary hearings are extremely rare because you have to show that there's a substantial likelihood that there was a constitutional violation. And Zellner says it will be especially difficult in Lake County, a jurisdiction that has come under intense scrutiny in recent years for wrongful convictions. They do not want to admit error, and they've got a half dozen examples that have cost them millions and millions of dollars. The legal wrangling over the hearing would drag out for months, the state insisting there's no new evidence.

By then, Matt DeMartini had left the state's attorney's office for private practice. Please be with us and free Melissa because we need her home now. Let us pray. Melissa's family and supporters waited for word on a decision. The wheels of justice are moving slow. But this past June, Judge Shaines finally agreed to grant Melissa her day in court. The Kaliuzinskis were overwhelmed. I was just ecstatic. I started crying, actually.

Did you think this day wouldn't come? I knew it was going to come, but I wasn't expecting it to hit me as hard as it did that day. In August 2016, five years after she was convicted of murdering Benjamin Kingan, Melissa Kaluzinski was back in a courtroom for a hearing that could decide if she goes free. And how much is riding on this?

Everything. I hope that the judge sees the evidence that we've gathered and rules in her favor. Dr. Rudd testified about Dr. Choi's admitted mistake and about finding that clear set of x-rays. X-rays that he and other defense experts say show no skull fracture. X-rays that Melissa's original attorney says he never saw. You never saw this prior to trial, during trial? No, no. It's unbelievable that that was never turned over to us. At the hearing, Paul DeLuca testified that the clear x-rays were crucial at trial. He says they directly contradict the prosecution, who told the jury over and over again that Ben Kingan had a skull fracture.

They wouldn't have been able to throw this term around that easily. Remember, the state gave him these three dark x-rays before trial. And they said these are illegible. So the state handed you a disc but told you right off the bat. You can't see anything on a disc. But prosecutors now put the blame on DeLuca, saying the disc they gave him had software that would enhance the x-rays, and he simply didn't do enough to brighten them. DeLuca says he couldn't open the software. We tried every icon.

Nothing else opened up. The state says DeLuca could have sought more help. To make the point, prosecutors called this technician, Eric Stoffiker, who works for the software company. He showed how the images could have been brightened. But Zellner says no matter what DeLuca did, his X-rays were inferior to the ones in the coroner's computer because she believes DeLuca's X-rays were deliberately photoshopped.

To support that charge, she brought in Jeff Mueller, a software developer and imaging expert. So I'll go to adjustment and I'll go to levels and then I will go ahead and darken this thing until voila we've got an image that looks like the DeLuca. Wait a minute, so you're saying that somebody took this image, took it off the coroner's computer, put it on his or her own, photoshopped it, changed it? Yes. But if so, why? What makes this case a homicide is the skull fracture. So if a skull fracture does not exist, there is no homicide.

The case collapses. So a tremendous amount of effort went into the manipulation of these images to obscure the fact that there is no skull fracture. Never was a skull fracture. At the hearing, prosecutors challenged Jeff Mueller's expertise and denied that anyone had manipulated the images. But Zellner had another witness with information about those x-rays. I have a very good memory with most cases, but especially when it comes to children. Paul Foreman was a deputy coroner during both of Ben Kingan's autopsies in 2009. As a father of four children, I thought to myself, why? Why? Why did this happen to this

child? Paul Foreman is actually the person who took the original x-rays. How clear were these x-rays that you took of Ben Kingan? The x-rays of Ben were good quality. They were clear. Are you the one who made that anonymous phone call? No, I did not. I mean, will you swear to me you weren't the caller? A lot of people might think I made that call. Paul Foreman's testimony was important for Melissa, but no one ever imagined how important he would turn out to be. Attorney Kathleen Zellner believes Melissa Koyuzinski is innocent of murder, but she wasn't totally confident she could convince a judge.

Until you talked to Paul Foreman? Until I talked to Paul Foreman. Did you ever expect that he would just hand you a bombshell piece of evidence? Well, I did not because he didn't know he was handing me a bombshell piece of evidence. Former deputy coroner Paul Foreman had information that Zellner says calls into question the testimony of one of the most important witnesses in Melissa's trial, Dr. Manny Montez. Montez was the state's last witness who gave that damning testimony about examining Ben Kingan's head. Bottom line is Montez said there was a skull fracture. I touched the skull. I manipulated it. I opened the skull up. I looked at the fracture line.

But Foreman shocked Zellner with a very different story. He says Montez never physically examined Ben's body or touched the child's skull. Did he lie to the jury? Yes, he did. Foreman testified Dr. Montes only viewed the file and autopsy photos and never went into the autopsy room where the child's body was kept. Could he have somehow gone in and looked at Ben's body,

examined the body without you knowing? No, I was with him from the moment he came in the door to the moment he left. But the state tried to discredit Paul Foreman as a witness by questioning his memory as well as his mental health. Foreman told us he's been treated for bipolar disorder and depression, which is part of the reason he left the coroner's office before Melissa's trial. Well, it was a personal attack. Another defense witness raises questions about Dr. Montes' testimony that there was a skull fracture that could be felt.

Dr. Robert Zimmerman, a renowned pediatric neuroradiologist, testified that it would have shown up on x-rays. It wasn't there on the x-ray, so I don't think you could have actually seen it. Do you think this was a wrongful conviction? I suspect that it was Did dr. Montes lie to the jury at Melissa's trial? Dr. Montes never responded to our multiple requests for an interview Prosecutors would not agree to a new interview either, but in court they said they still stand by their trial witnesses like Dr.

Montez and Dr. Choi, who said there was a skull fracture. As the three-day hearing comes to an end, the waiting begins. I'm just going to be hopeful and pray about it and just hope for the best. On September 30th, 2016, two weeks after the conclusion of the hearing, Judge Shaines comes back with his decision. Melissa's petition to overturn her conviction is denied. She was dealt a devastating setback today in court. That's when a judge ruled she would not get a new trial in her murder case. In his ruling, Judge Shane stated that he didn't find Paul Foreman's testimony credible. He pointed out that he observed Dr. Montes at trial and found him truthful and does not believe he perjured himself. has a trial and found him truthful and does not believe he perjured himself. The judge concluded the x-rays were not manipulated. What's more, he agreed with the state that there was just one set

of x-rays and that Paul DeLuca had the means to brighten them. Can I just get your first reaction? Zellner says she wasn't surprised. I'm totally expected it. We're in Lake County. They never admit they're wrong. But Zellner vows the fight isn't over. The next battleground will be at the state appellate court. Did you ever think you'd be sitting here at age 30? No, absolutely not. And it hasn't been easy for some of Melissa's supporters either. Dr. Rudd, who is an elected official, has been accused by the state of being politically motivated in his actions. I've got a bullseye on me right now, okay? They do not want me in this office. And there's this. After Paul Foreman testified, he was served with this grand jury subpoena. But is it real?

It doesn't contain key information it's supposed to have, like the case number or the name of the prosecutor handling the case. Also unusual, Foreman received voicemails from a state's attorney investigator reminding him to drop by. Hey, Paul. Just wondering if you're still planning on coming in. It's 10 o'clock almost on Wednesday morning. Remember, we had the grand jury subpoena. Hoping you can still make it. Complying with a grand jury subpoena is mandatory. But on the advice of his attorney, Paul Foreman didn't go.

Foreman and his attorney believe the subpoena was a ruse intended to rattle him. But just yesterday, the state's attorney's office contacted 48 Hours claiming the subpoena was real and denied there was an attempt to intimidate Foreman. He continues to stand by his testimony. My motivation is we have to find out what happened to Benjamin. I don't think we made the right accusation in this one. It's now been almost eight years since Benjamin Kingan died. Not only have Ben's parents had to grieve their son's death, but they have also had to suffer through years of hearings and publicity about the case. You've got these poor parents who are reliving the death of their son probably every day,

and now you have all of these facts coming out over these last couple of years that raise questions. You know what? That bothers me. This is not right to either family. Melissa says she still thinks about Ben and his parents all the time. still thinks about Ben and his parents all the time. I had nothing to do with it, and I want them to see that. They need to know the truth about Ben. Dr. Thomas Rudd is no longer Lake County Coroner.

He lost the election in November. Kathleen Zellner will file Melissa's latest appeal in January. Hear more of Melissa's taped confession online at 48hours.com 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 slash survey.