BLOOMINGTON — After more than 27 years in prison, Donald Whalen was given a new trial Wednesday morning in the 1991 brutal beating and stabbing death of his father in a downtown Bloomington bar.
Judge Scott Drazewski delivered the ruling after three days of hearings on Whalen's request for a new trial based on information developed since his trial in the death of Bill Whalen.
The defendant lowered his head and wiped tears after the ruling. He reached out to his mother in the courtroom and grabbed her hand before he was returned to the county jail, pending a bond hearing next week.
Colleen Whalen also cried after the judge ordered a new trial for her son, 52. When asked about plans for her son if the state decides to dismiss charges rather than have a second trial, she said "just do family things, Thanksgiving now and Christmas."
Defense lawyers Tara Thompson and Elliot Slosar with The Exoneration Project said they are hopeful the state will drop the case.
Calling Drazewski "a courageous judge," Slosar said he wants the state's attorney's office to "take a deep look into the record and if that actually happens ... the only possible conclusion (is) that there's no longer probable cause and the state should dismiss charges against Donald Whalen."
For Thompson, Whalen's case is an illustration of similar post-conviction efforts where "people just want the opportunity for the court to hear the whole story and correct what is wrong."
Whalen's bond was set at $2 million, so he will need to post $200,000 to be released pending trial. A hearing is set for Tuesday on a defense motion to reduce the bond.
The McLean County State's Attorney's Office has 30 days to decide if an appeal of the ruling will be filed, and if the state will move forward with a second trial.
In a statement after the ruling, State's Attorney Don Knapp said his office "will obtain a transcript of Judge Drazewski’s ruling granting Mr. Whalen’s 2-1401 petition which ordered a new trial. Once my team and I have had an opportunity to review the court’s ruling in detail and compare it to the evidence introduced at trial as well as the post-conviction hearings, we will determine an appropriate path forward."
Drazewski spelled out his reasons for granting the new trial in a 30-minute ruling. He started by noting that to qualify for a second trial, the defense must show that newly-discovered evidence exists that is relevant, material to the case and may not have been available at the time of the trial. The new evidence, if presented at a new trial, must be of such a caliber that it could change the outcome of the trial.
Drazewski said the DNA evidence and fingerprint evidence presented during the post-conviction process warrants a new trial for Whalen. He noted the new evidence is great enough to "undermine confidence in the outcome of the (first) trial.”
Evidence that excluded Donald Whalen as the contributor of DNA on any evidence collected at the former Twenty Grand Tap, including knives used as the murder weapon, is “clearly both new, relevant and material evidence,” the judge ruled.
During Whalen’s trial, the state told jurors that a bloody palm print found on a piece of a broken pool cue could only belong to Donald Whalen. But testimony last week from retired Illinois State Police crime lab scientist John Dierker raised questions about the credibility of that opinion, said the judge.
Drazewski ruled the results of DNA tests on several knives found at the crime scene potentially implicate an unknown assailant — information Whalen’s jury never heard because the knives were only tested after the state lab was ordered to conduct tests several years ago as part of Whalen’s challenge of the conviction.
Former prosecutor Teena Griffith thwarted further comparisons with unidentified fingerprints by directing the crime lab to only compare the prints to Donald Whalen and his father, according to testimony at three days of recent hearings.
On the issue of the palm print, the discovery of records from the state crime lab detailing discussions between the Bloomington Police Department and Dierker could be helpful to the defense at a new trial, said Drazewski. The notes were turned over by BPD to Whalen's lawyers with The Exoneration Project in response to a subpoena.
Dierker’s notes early on in the investigation that the palm print was unsuitable for comparison to Bill Whalen “cast doubt on the opinion that the palm print was a match to the defendant,” said Drazewski.
Furthermore, the recent testimony showing testing was never conducted on the palm print to confirm it was left in blood is new evidence that could be critical to a new trial, said the judge, adding the state’s opinion related to the print lacks any scientific foundation.
Several points raised by the defense did not rise to the level of newly discovered evidence, said Drazewski.
Evidence that police did not give appropriate attention to another potential suspect would be additional, but not new evidence at a second trial, the judge ruled.
Robert McElvaney was a bar patron told by the elder Whalen to leave hours before the homicide. McElvaney was questioned by police about three hours after the victim's body was found and offered what could be considered incriminating statements, contended Slosar.
When called to the stand at a recent hearing, McElvaney refused to answer more than 30 questions, instead asserting his Fifth Amendment right against self-incrimination. The questions from Slosar directly accused McElvaney of killing the victim.
In his closing arguments Tuesday, Assistant State's Attorney David Rossi argued the lack of DNA evidence linking Donald Whalen to his father's death should not be a reason for a new trial. According to Rossi, if the victim was struck from behind, the perpetrator would have controlled the fight early on and been able to walk away without obvious signs of injury.
When Donald Whalen was questioned by Bloomington police the morning after his father's body was found, he showed no sign of injuries.