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Donald Whalen appeared in McLean County Court Monday, Jan. 28, 2019, to assist his attorneys, Tara Thompson, left, and Elliot Slosar, right, as they seek to win Whalen a new trial after he was convicted of murdering his father, William Whalen, in 1991.

BLOOMINGTON — After more than 27 years in prison, Donald Whalen will learn Wednesday if a new trial will be granted for him on murder charges in the death of his father. 

Judge Scott Drazewski set a 10 a.m. hearing to announce his ruling.

Whalen is nearing the end of the 30 years he's required to serve of a 60-year sentence in the 1991 death of his father, William Whalen, who was stabbed more than 30 times and beaten with a pool cue before his body was found by an employee of The Twenty Grand Tap, then a downtown Bloomington bar owned by the elder Whalen.

In closing arguments Tuesday, defense lawyer Elliot Slosar challenged each pillar of the state's evidence used to convict Whalen at a 1991 trial, starting with a bloody palm print allegedly left by the suspect on a piece of a pool cue found near the victim.

The defense contends retired Illinois State crime lab worker John Dierker was pressured by Bloomington police to produce an opinion on a partial palm print. Dierker's statement to the jury in 1991 that no one other than Donald Whalen could have left the palm print was a key element of the state's case. 

Slosar argued that a hastily conducted investigation by former Bloomington Police Chief Randy McKinley, who was a crime scene technician at the time, and BPD detectives quickly put Donald Whalen at the top of the suspect list. 

Dierker's initial opinion that the print was inconclusive as to whether it was the victim's changed after he was told Donald Whalen was a suspect, said Slosar. The incriminating conclusion has no scientific basis in fact, said Slosar, one of Whalen's lawyers with the University of Chicago's Exoneration Project.

"The state will never be able to tell a jury that the print was left in blood," Slosar told the judge.

The absence of Donald Whalen’s DNA from evidence collected at the bloody scene of his father’s death contradicts findings in most violent attacks, said Slosar, echoing testimony earlier Tuesday from a forensics expert. 

Tests on multiple items, including the knives used to kill William Whalen, excluded Donald Whalen as the source of DNA profiles, according to Karl Reich, a forensic expert with Independent Forensics outside Chicago. 

The victim’s DNA could not be excluded as the source of DNA on the knives, according to results performed by Orchid Cellmark for the state.

The absence of Donald Whalen's DNA is unusual, given the violent nature of the encounter that led to the victim’s death, said Reich. “You absolutely expect the assailant left some part of himself behind,” he said. 

The defense also took aim at the credibility of 1991 testimony from McKinley, who claimed at the time to be a "certified fingerprint examiner."

McKinley, who now serves as chief of police in St. Charles, Mo., testified he believes the certification was provided by the state police.

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Retired fingerprint examiner John Dierker testifies during Donald Whalen's appeal for a new trial after Whalen was convicted of murdering his father, Bill Whalen, in 1991. Dierker testified there was no conclusive proof that Donald Whalen's palm or finger prints could be linked to the crime.

But Dierker testified that no such certification is available for police departments.

According to training records maintained by the state Law Enforcement Training and Standards Board, McKinley completed a basic fingerprint classification course in 1990 and a one-day course on fingerprint processing in 1993.

McKinley also had the benefit of a script provided by former prosecutor Teena Griffith before the trial that told him to how to testify about the palm print, said Slosar. 

"It was that script that doomed my client's fate," said Slosar, adding that he has only seen such assistance provided to jailhouse informants before their trial appearances. The so-called script was never provided to the defense working on Whalen's trial, he said.

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Robert McElvaney refused to answer questions put to him by Whalen's attorney, citing his Fifth Amendment rights to not potentially incriminate himself.

In his closing remarks, Assistant State's Attorney David Rossi said the lengthy briefs filed by the Exoneration Project "completely glossed over" actual evidence at the trial.

The lack of DNA is unimportant, said Rossi, because the victim likely was hit from behind by his son, leaving the younger Whalen without injuries from his father or a chance to leave behind DNA evidence.

The prosecutor questioned whether any of the newly raised arguments by the defense amounted to new evidence — something the defense must prove to secure a new trial.


 Photos: Donald Whalen seeks new trial in murder of father

  

Contact Edith Brady-Lunny at (309) 820-3276. Follow her on Twitter: @pg_blunny

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McLean County Courts Reporter

McLean County courts reporter for The Pantagraph.

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