Illinois Attorney General Takes No Position on Del Prete’s Release From Prison

Prosecutors argue that imprisoned day care worker must await state proceedings before federal court weighs in

In its filing today, the Illinois Attorney General’s office did not oppose Jennifer Del Prete’s request to be released from prison while her case works through state court.

By Lauryn Schroeder
The Medill Justice Project

The Illinois Attorney General’s Office today argued that prisoner Jennifer Del Prete must await the outcome of state legal proceedings before pursuing her federal petition. But in what is considered an unusual move, prosecutors did not oppose her request to be released from prison while her case works through state court, citing “the unique circumstances of this case.”

U.S. District Court Judge Matthew F. Kennelly recently issued a ruling saying that “no reasonable jury,” which heard all of the evidence, would have found Del Prete guilty of murder. Whether and when Del Prete would be released, after serving nearly a decade in prison, remains unclear. A spokesperson for the state Attorney General’s Office declined to comment.

In February, Del Prete’s attorneys filed a federal Brady claim, accusing the state of withholding key evidence that points to Del Prete’s innocence. The evidence centered on a 2003 letter written by a police detective in Del Prete’s case, which was found by The Medill Justice Project and published as part of its investigation last year. Her lawyers filed a Brady claim in state court in May 2013 and the issue is pending. Del Prete’s attorneys requested she be released from prison if the federal court postpones its ruling until state proceedings have concluded.

While the Illinois Attorney General’s Office argued Del Prete must first exhaust her claim in state court before the claim can be heard in federal court, the state said in its filing today, “under the unique circumstances of this case, respondent takes no position on the propriety of bond in this case.”

Kent Simmons, a veteran Iowa criminal attorney, said it’s unusual for a prisoner to be released during a federal habeas corpus petition, a legal action brought by a prisoner against what she considers wrongful imprisonment—and he said it’s especially rare when the case involves a murder conviction. But he said it’s not unprecedented. In the Illinois Attorney General’s filing, it cites at some length the federal court’s “inherent authority to release an inmate” during such legal proceedings.

Del Prete, 43, was accused of violently shaking a 3 ½-month-old infant on Dec. 27, 2002. She was sentenced to 20 years in prison in 2005. Her attorneys filed a federal habeas corpus petition in 2010, claiming ineffective counsel and insufficient evidence violated her constitutional rights to a fair trial. A federal innocence hearing was reopened in April 2013 after The Medill Justice Project published its investigation that included the police letter as revelatory evidence.

In the 2003 letter obtained by The Medill Justice Project, Police Commander Kenneth Kroll said the forensic pathologist who performed the infant’s autopsy was uncertain whether the day care worker had violently shaken the child in what is known as shaken-baby syndrome or abusive head trauma.

Del Prete has until April 10 to file a response.

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