BLOOMINGTON — Lawyers for Donald Whalen left a McLean County courtroom Tuesday optimistic that their client was one step closer to securing a new trial on murder charges.
Judge Scott Drazewski denied two motions by the state to dismiss Whalen’s request for a new trial based on evidence developed since his conviction.
Whalen is serving 60 years for the 1991 murder of his father, William Whalen, during a bloody after-hours confrontation at the Twenty Grand Tap, which had been a downtown Bloomington bar owned by the elder Whalen.
The judge ruled that Whalen is entitled to a hearing on the new evidence, including DNA results that exclude him from knives used to kill his father.
The DNA evidence “arguably now excludes the defendant,” said Drazewski, and “undermines confidence in the outcome of the trial,” a threshold the defense must cross in its bid for a new trial.
“We consider it a victory. I’m excited to have the opportunity to cross-examine witnesses for the state who we know testified falsely at the trial,” said defense lawyer Elliot Slosar, an attorney working with counsel Tara Thompson. Both are with the University of Chicago’s Exoneration Project.
McLean County State's Attorney Don Knapp said he will review the ruling with his staff and prepare for an upcoming hearing on the issues.
Among the evidence considered by the jurors at Whalen’s trial was a fingerprint from a pool cue found near the victim’s body and testimony from a witness who claimed Whalen had thousands of dollars in cash when he went to Chicago to buy drugs after his father’s death.
Slosar argued that the state deliberately concealed information related to statements from William Craig Elliot, the witness who accompanied Whalen to Chicago and later testified about the cash prosecutors alleged Whalen stole from his father. The state put forth the theft of $3,000 for drugs as a motive for the killing.
In a new affidavit, Elliot now claims Whalen had only enough to buy $800 worth of cocaine. The witness also says Bloomington police told him they knew that donations to the Whalen family were the source of the drug money.
The information “that the money came from donations and not ... the murder of his father has never been disclosed,” Slosar argued.
The defense also has raised questions about new information obtained by the state from a witness in Whalen’s trial.
Retired Illinois State Police crime lab analyst John Dierker testified in 1991 that no one except Donald Whalen could have left a bloody palm print on a pool cue. That conclusion now has serious flaws, said Slosar.
A 2018 affidavit from Dierker expands his May 1991 report to Bloomington police identifying Donald Whalen as the source of the palm print. Slosar pointed out that Dierker’s opinion conflicts with a report he submitted in April 1991 with inconclusive findings as to William Whalen’s prints.
Dierker’s 2018 statement claims he lacked a suitable comparison print for the victim.
“If the palm print on the pool cue was unsuitable for comparison, then it could not have formed a match to Mr. (Donald) Whalen two weeks later,” Slosar argued in his petition for a new trial.
A report from defense expert Michelle Triplett concludes that Dierker’s claim that the palm print was left in blood “is without any evidentiary or scientific basis.” No tests were performed on the pool cue before Whalen’s trial to determine whether the print was made in blood, said the report.
In her arguments opposing a new trial, Assistant State’s Attorney En-Chi Lin contends that the newly evidence cited by the defense comes too late in the review process to be considered. A two-year deadline from the final ruling issued in the case expired in August 2013, she said.
In response to a question from the judge, Lin acknowledged that the palm print “was the most direct evidence the state had at the time” against Whalen.
Lin also challenged the defense position on DNA test results on knives believed to be the weapons that inflicted more than 30 blows that killed the victim. After more than a decade of legal wrangling, the state was ordered to perform forensic tests that ultimately excluded Donald Whalen.
“The fact that there’s no DNA evidence on the knives does not exclude him from being at the scene,” said Lin.
The state also renewed its challenge to DNA results that were the product of a sample compiled by a scientist in a private lab of several DNA profiles.
“It’s new information but it’s not admissible evidence,” Lin said of the unusual DNA results.
The state further questioned whether the knives had been properly stored during the 28 years since the trial, bringing into question the veracity of the DNA test results.
A new trial for Whalen would include forensic evidence developed with new technology not available almost 30 years ago, said Slosar. Jurors also would hear about an alternative suspect who was barred from testifying during Whalen’s first trial, he said.
“There’s a dozen different ways Donald Whalen will likely be cleared at a retrial,” said Slosar.
In his ruling, the judge disagreed with the state that time had expired on the DNA evidence.
Drazewski was not convinced that police fraudulently concealed information from the defense on where Whalen may have gotten the money for drugs. But the evidence was sufficient, said the judge, to believe Dierker’s initial opinion on the palm print was improperly withheld from Whalen’s lawyers.
The judge said factual disputes on the new evidence require a hearing before he is ready to rule on a new trial for Whalen. A Dec. 7 hearing is set for lawyers to discuss possible dates for what is likely to be a mini-trial as the defense previews its new evidence that could discredit what was used to convict Whalen.