UPDATED 2:50 p.m. | The Fourth District Appellate Court has reversed a ruling allowing Don Whalen a new trial on murder charges and sent the case back to McLean County for further consideration.
Whalen was released in February 2019 after Judge Scott Drazewski granted his petition for a new trial in the 1991 stabbing death of William Whalen, the defendant’s father. Whalen had served about 28 years of the 30 years he was required to serve of his 60-year sentence.
Whalen is currently free on a $1 million bond. State’s Attorney Don Knapp said he is reviewing the opinion and had no immediate comment on the state’s next move in the case.
Whalen’s lawyers with the University of Chicago’s Exoneration Project argued in a series of court hearings last year that new evidence has emerged in the Whalen case. The weight of that new evidence could sway a jury to acquit Whalen if the information were presented in court, attorney Elliot Slosar argued.
Slosar said the legal team is “extremely disappointed” in the ruling. The defense will take the case directly to the Illinois Supreme Court and seek a review of the appellate decision.
“We are hopeful the Illinois Supreme Court will take this case as they have other wrongful conviction cases like Alan Beaman and Chris Coleman and will provide justice to Don Whalen by giving him the new trial Judge Drazewski appropriately decided he deserves. Given the record in this case, there’s no possibility Don Whalen would ever be convicted upon retrial,” said Slosar.
The move by Whalen’s lawyers to bypass the McLean County and appellate courts means the Illinois Supreme Court has requests to review decisions in two local murder cases. Beaman, exonerated in 2008 of killing his girlfriend in 1993, is seeking a civil trial in his lawsuit against three former Normal police officers and the town of Normal.
In their petition for a new trial, Whalen's lawyers raised questions about the reliability of results from the Illinois State Police crime lab on a bloody palmprint found on a pool cue near the victim’s body. William Whalen died after a brutal attack at The Twenty Grand Tap, a bar he owned in downtown Bloomington.
The defense also contends a second man who was involved in a disagreement with the victim hours before his death was not properly vetted as a suspect by police. Robert McElvaney refused to answer Slosar’s questions during a hearing last year.
In his ruling in favor of a new trial, Drazewski found “the likelihood of a different result is great enough to undermine the confidence in the original trial.” The appellate court noted that Drazewski used a legal standard of “reasonable probability” in his review, a standard set in a 2012 Fourth District case.
But the Fourth District has changed its thinking in the 2012 case, acknowledging in the Whalen opinion that “this court erred by equating the language 'probably change the result on retrial,' with a 'reasonable probability' the result would change on retrial.”
Whalen’s case was sent back to McLean County “so the court can determine whether a different result after a new trial would be “probable” or “more likely than not” based on the new evidence in this case considered alongside the original trial evidence.”
Whalen has been living in Bloomington since his release. He said he plans to work as a commercial truck driver.
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