A recent ruling by the Illinois Supreme Court involving post-conviction petitions could impact pending innocence claims across the state, including efforts by Don Whalen to secure a new trial in the 1991 death of his father in Bloomington.
In a 4-3 decision issued June 18, the state’s high court ruled that the post-conviction petition of a Cook County man convicted in a 1997 shooting death may move forward. An earlier ruling by a Cook County judge, later affirmed by the First District Appellate Court, effectively ended Rickey Robinson’s legal challenge to his conviction. The new court ruling puts his case back on track.
Lawyers for Whalen argued in a new court filing with the Supreme Court that the decision in the Robinson case settles legal challenges as to the legal standard judges should apply in assessing whether a defendant is entitled to a new trial. In 2019, Whalen was granted a new trial by Judge Scott Drazewski based upon evidence discovered since his conviction in the stabbing death of his father, Bill Whalen.
The judge concluded that newly discovered DNA evidence, together with a defense challenge of the relevance of a palmprint found on a bloody pool cue near the victim, was sufficient to warrant a new trial for Whalen, who was released on bond after Drazewski’s ruling.
The Fourth District Appellate Court later challenged the standard used by Drazewski for granting Whalen a new trial and sent the case back to McLean County for further consideration. Whalen has a pending request with the Supreme Court seeking a review of the appellate decision.
Defense lawyer Elliot Slosar with the Illinois Exoneration Project argued in his court filing that the standard laid out in the recent Supreme Court ruling “is almost word for word the standard articulated and applied by the Circuit Court in granting Donald Whalen a new trial.”
Drazewski’s use of a “reasonable probability” standard to assess whether a jury would acquit Whalen based on the new evidence, was incorrect, the Fourth District Court ruled. Instead, the judge should have used a “more likely than not” standard to determine a potential acquittal when new evidence is considered alongside what jurors heard at the original trial, said the appellate decision.
All the forensic evidence introduced in post-conviction hearings “points away from Donald Whalen being his father’s killer,” according to Whalen’s petition seeking a return of his case to McLean County without further delay.
“Extensive modern DNA testing showed that someone else’s DNA, not Donald Whalen’s was found on the multiple knives used to kill Mr. Whalen’s father,” Slosar wrote in his new petition.
Before his release on bond, Whalen served almost all of the 30 years he was required to serve of his 60-year prison term. In addition to the court proceedings related to his murder conviction, Whalen faces nine counts of escape involving his alleged violation earlier this year of the terms of his release on an ankle monitor.