A federal judge has ordered Jennifer Del Prete to be released from prison.  The former day care worker has sought her freedom since her conviction nearly 10 years ago for a murder she says she didn’t commit.  U.S. District Court Judge Matthew Kennelly said that Del Prete should be released after posting bond while the court addresses her appeals, which include whether prosecutors withheld evidence pointing to her innocence.  That evidence was discovered by the Medill Justice Project.

Del Prete is expected to be released after a hearing on April 30th.  The defense and prosecution are setting the terms of bond.

Tia Del Prete, Jennifer Del Prete’s 24-year-old daughter said, “I’m completely ecstatic…a real dream come true.  I’ve been wishing every chance I got for this for the last 9 years…”

Del Prete, 43, was convicted of first-degree murder in the shaking death of a 3 1/2 month old on December 27, 2007 in Romeoville, Illinois.  She was sentenced to 20 years in 2005.

In 2013, Del Prete’s attorneys filed a state Brady claim and a federal Brady claim earlier this year, accusing the state of withholding key evidence.  The evidence is centered on a 2003 letter written by a police detective, which was discovered by the MJP as part of their investigation.  Police Commander Kenneth Kroll wrote in the letter that the forensic pathologist who performed the autopsy doubted that Del Prete violently shook the child to death (which is referred to as shaken baby syndrome or abusive head trauma).

The decision means that Del Prete will have to first address her innocence claims in state appeals court before she can enter federal appeals courts to resume her habeas corpus petition.  Legal proceedings could take several more years.  The state did not oppose Del Prete’s release.  In his order, the judge called his ruling “rare” and noted that the power to release a prisoner on bond during a pending habeas petition should be used sparingly.  The judge also noted that the prosecution “concedes that the case poses unique circumstances.” 

Kennelly wrote of the new evidence that “the coroner who conducted the autopsy [on the victim]…harbored significant doubts” that the child was the victim of shaking, “although the coroner’s doubts were known to the investigating law enforcement officers…this was not disclosed to Del Prete or her trial counsel.”  

The appellant offers “a strong case on both the facts and the law that are likely to result in an order overturning Del Prete’s conviction.”

The judge said Del Prete “should not have to wait in custody” while her appeals are being reviewed because “the delay is wholly attributable to the law enforcement authorities who did not disclose [the detective letter and related evidence].”

The new order comes after his ruling in January stated that no reasonable jury that heard all of the evidence would have found Del Prete guilty of murder.  Kennelly has taken issue with the science that served as the basis for the prosecution’s case.

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