BLOOMINGTON — Evidence cited last month by a judge in his ruling giving Donald Whalen a new trial falls short of the legal standard for such a decision, prosecutors argue in a newly-filed motion asking the judge to reconsider his ruling.
Whalen was sentenced to 60 years in prison in the 1991 beating and stabbing death of his father, Bill Whalen.
The elder Whalen was found with multiple stab wounds hours after he closed the downtown bar he owned, the former Twenty Grand Tap.
In February, Judge Scott Drazewski vacated Whalen's murder conviction and granted him a new trial. In his ruling, the judge cited DNA results returned since Whalen's trial that exclude him from all evidence collected and tested from the crime scene. He also cited doubts about the source of a bloody palm print found on a fragment of pool cue used to beat the victim.
Phone logs of calls between the Illinois State Police crime lab and Bloomington police were used by the defense to explain doubts as to why a lab worker may have changed his opinion that Donald Whalen left the palm print. The police identification of Donald Whalen as a suspect may have unfairly influenced the lab worker's opinion, the defense claims.
The defense also contends the phone logs represent one of several pieces of evidence that cast doubt on how police conducted the investigation leading up to Whalen's arrest on murder charges.
Elliot Slosar, one of Whalen's lawyers with The Exoneration Project, said the defense is prepared to argue the state's motion Friday afternoon at a hearing to review the status of the case. On Feb. 13, Whalen asserted his right to a speedy trial within 120 days.
"We are looking forward to a retrial or the dismissal of these charges. We are eager to see the day Donnie walks free," said Slosar.
The state's motion "doesn't have any merit. The issues have either been previously ruled on, or were never properly raised when they should have been," said Slosar.
If the judge denies the motion to reconsider charges, the state could file an appeal. The Fourth District Appellate Court that would hear that appeal previously ruled in Whalen's favor in a decision that ordered forensic testing of knives believed to have been used as weapons in the killing.
Whalen, now 52, remains in the McLean County jail where he has been since the Feb. 13 ruling granting him a new trial. He could be released on bond if he is able to post the $100,035 required under the terms of a reduced bond set by Drazewski.
If released, he also would be confined to his mother's home in Bloomington except for medical and legal appointments and church services.
If the state elects to try Whalen a second time, the deadline for a new trial would be June 13. Jurors at a new trial would likely hear about the controversial palm print evidence and the DNA test results not available in 1991.
At the time Whalen was granted a new trial, he was approaching the end of the 30 years he was required to serve in prison: He was sentenced before a change in the law that mandates inmates convicted of murder serve 100 percent of their sentence.
If charges are dismissed or Whalen wins a second trial, he can apply for a certificate of innocence from the state and about $220,000 — the maximum compensation available for those who serve more than 14 years behind bars. He also may petition the governor for clemency.
A conviction at a second trial would mean a new sentencing for Whalen. In Illinois, murder carries a possible sentence of 20 to 60 years. Whalen would receive credit for the three decades he's served for his first conviction.