Donald Whalen is headed back to the Department of Corrections to complete the 30 years he must serve in the 1991 stabbing death of his father, the latest in a roller coaster ride of legal developments that swerved dramatically against Whalen on Tuesday after a judge reversed an earlier ruling granting Whalen a new trial.
Judge Scott Drazewski ruled in 2019 that Whalen was entitled to a new trial, based in part on new DNA evidence related a pool cue found near William Whalen’s body hours after he was beaten to death at the bar he owned in downtown Bloomington.
Lawyers with the Exoneration Project argued in 2019 that other evidence, including the refusal of a witness to testify about an altercation he had had with the bar owner the night of the slaying, would likely lead to Whalen’s acquittal at a new trial.
Drazewski agreed in February 2019 and ordered a new trial. Whalen was freed on a $1 million bond and placed on an ankle monitor.
In his latest ruling, Drazewski cited guidance from the Fourth Appellate Court in its March reversal of his 2019 decision. The appellate court sent the case back to Drazewski with instructions to take another look at the standard used to determine if a new trial was warranted.
Drazewski granted Whalen credit for the 18 months he has served on home confinement. With the 28 years he was in prison, Whalen may be within weeks of release. Whalen is among 39 other inmates housed at the McLean County jail awaiting transfer to the Department of Corrections. The spread of COIVD-19 in state prisons has slowed new admissions to prisons.
Elliot Slosar, one of Whalen’s lawyers, expressed disappointment Wednesday with the new ruling, but said the fight is not over.
“We look forward to filing an appeal. Eventually, we hope the Illinois Supreme Court will take on this case and give some guidance to the lower courts in the state on the meaningfulness of DNA exclusions where the exclusions are from the murder weapon. We believe Judge Drazewski got it right in his 2019 decision,” said Slosar.
McLean County State’s Attorney Don Knapp said, “we believe the decision is appropriate, especially given the appellate court’s clarification” of the standard for a new trial.
In its March decision, the appellate court noted Drazewski’s use of a “reasonable probability” standard in his review of the evidence, a standard set in a Fourth District 2012 case. In its reversal of Drazewski, the Fourth District acknowledged an error in its conclusion in the earlier case.
“This court erred by equating the language 'probably change the result on retrial,’ with a ‘reasonable probability the result would change on retrial,'” said the March opinion.
Whalen still faces several pending charges filed since his release, including an escape charge related to his alleged travel outside the area allowed under the terms of his release, and a battery charge involving a dispute with his girlfriend.
