BLOOMINGTON — Donald Whalen will have a chance Jan. 28 to provide a judge with the new evidence he contends will exonerate him in his father's murder.
Judge Scott Drazewski set the hearing date Friday for Whalen's attorneys to present new information, including a report from a fingerprint expert who disputes the opinion of a state witness in Whalen's 1991 trial that a bloody palm print on a pool cue matched the suspect.
The judge rejected a request from Assistant State's Attorney En-Chi Lin to delay the hearing until May to allow her to return from a two-month maternity leave and prepare for the hearing.
When asked why another lawyer could not take over the case in her absence, the prosecutor said the state's attorney's office did not plan to assign a replacement for her on Whalen case. The delay would also give the state time to file new motions, she said.
"Your office is going to have to deal with that. We're not going to wait four months for a hearing," said the judge.
Defense lawyer Tara Thompson with the University of Chicago's Exoneration Project asked for the earliest available date on the court calendar.
The hearing could last multiple days, according to Thompson.
The hearing will involve several issues, including fingerprint evidence that was key in the state's case against Whalen, who now is 52 and nearing the end of the 30 years he is required to serve of a 60-year sentence for the death of his father. William Whalen was found beaten and stabbed in 1991 at the former Twenty Grand Tap, a Bloomington bar he owned.
In a petition seeking a new trial, Whalen's defense team argues that newly discovered documents cast doubt on the trial testimony of retired state police crime lab analyst John Dierker. Documents that include Dierker's 1991 notes show he initially deemed the print inconclusive as to the victim but at trial he opined that the print was a definite match to Don Whalen.
In July 2018, Dierker provided an affidavit saying the victim's fingerprint sample was unsuitable for comparison. The opinion offered by Dierker 27 years after the murder is an attempt by the state to shore up a weak case, according to the defense.
Whalen further argues in his filing that results of DNA testing on knives used to kill the bar owner point to another unidentified individual who committed the brutal murder.
From the state's view, the forensic results from the knives are based on unreliable testing methods, referred to as "Frankenstein science" by prosecutors. The state opposed work by an analyst at a private lab who combined several small DNA samples to create one suitable for testing.
Lin also argued at a Nov. 27 hearing that the storage conditions of the knives raised questions as to the integrity of the test results.
A recently filed affidavit that alters the trial testimony of Whalen's friend William Craig Elliot changes the state's damning image of a drug-abusing son who killed his father for money to buy cocaine. Elliot's previous assertion that Whalen had a large amount of cash when the two went on a drug run to Chicago after William Whalen's funeral has changed to indicate Don Whalen had hundreds, not thousands, of dollars.
Elliot also now contends Bloomington police told him they were aware the cash came from funeral donations and not a robbery, according to the defense.
Taken together, the new evidence undercuts confidence in the guilty verdict, said the defense petition.
"Ultimately, what has always been an extraordinarily weak case against Mr. Whalen has specifically and substantially deteriorated as time passed," Slosar wrote in the request for a new trial.
If the judge determines that Whalen is entitled to a new trial, the state will have to decide whether to retry the case or dismiss charges. An exoneration would entitle Whalen to seek a certificate of innocence, a designation that makes him eligible for compensation from the state.