Lawyers for Don Whalen renewed their arguments Wednesday in support of a new trial for Whalen on murder charges in the 1991 beating death of his father.
Unlike most defendants who are incarcerated during appeals of their murder cases, Whalen sat in the front row of the Fourth District Appellate Court in Springfield as lawyers argued his case. Whalen is free on $200,000 bond posted by supporters after McLean County Judge Scott Drazewski ruled in February that the Bloomington man is entitled to a new trial.
After the hearing, Whalen said he has obtained a CDL license and is working as a truck driver.
"We are hopeful that justice will prevail for Donnie Whalen and his family who have waited nearly three decades for this tragic ordeal to conclude," said defense attorney Elliot Slosar.
Appellate prosecutor Allison Paige Brooks argued the state’s challenge of Drazewski’s ruling. The McLean County judge erred, said Brooks, when he allowed Whalen’s legal team to present new evidence related to a bloody palmprint found on a pool cue in the former Twenty Grand Tap, a downtown tavern where Bill Whalen’s body was found.
The defense claim was barred, said Brooks, because it came a decade after Whalen’s previous lawyer discovered new information about Illinois State Police testing on the pool cue. A statute of limitations gave Whalen two years to make such a claim, said the prosecutor.
Brooks also argued Drazewski applied an incorrect legal standard in his review of new potential evidence. The judge’s finding that a jury considering the murder charges today would likely reach a different conclusion than the guilty verdict that sent Whalen to prison for three decades was below the appropriate legal standard, said Brooks.
The fact that Whalen was excluded as a source of DNA on evidence collected from the bar is not compelling new evidence, said Brooks. A defense expert previously opined that an assailant involved in the bloody bar fight that killed the elder Whalen would likely have suffered injuries serious enough to leave blood at the crime scene, Brooks noted.
Don Whalen “had no visible cuts after the murder so his blood wouldn’t be there,” Brooks told the three-judge panel.
Slosar, with the University of Chicago’s Exoneration Project, opened his remarks with a reminder that it was a 2011 Fourth District ruling that ordered DNA testing on evidence in the Whalen case.
“When the testing was done, modern DNA science yielded answers in this case,” said Slosar, referring to Whalen’s exclusion from the DNA test results.
Judge Robert Steigmann pressed Slosar several times on the issue of the potential significance of Whalen’s blood being found at the crime scene.
“His position has always been that he’s innocent,” making it impossible for his blood to be on evidence, Slosar responded.
The state’s position that Whalen had a financial motive for killing his father is debunked by the fact that $1,100 was found on the victim and in the bar after the slaying, said Slosar. The state has long argued that Whalen came to his father’s bar looking for money to support a cocaine habit.
A ruling in favor of the state could send the case back to Drazewski for reconsideration or reverse the order for a new trial. If the defense prevails, a decision must be made by the state on whether to proceed with a new trial. The state also could seek a review by the Illinois Supreme Court.
Whalen has served about 27 of the 30 years he is required to serve of his 60-year sentence imposed before the mandate that removed day-for-day credit on murder convictions.
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