Suspect in 'Angel of Death' case asks court to dismiss charges

A former nurse accused of encouraging a subordinate to serve as an Angel of Death at a McHenry County nursing home is asking a court to throw out three of seven felony counts against her, claiming authorities improperly charged her.

In a motion to dismiss relying heavily on grammar and the letter of the law, the defense for Penny Whitlock said prosecutors incorrectly applied a state statute when indicting the Woodstock woman on three of the five counts of criminal neglect of a long-term care facility resident.

"This isn't a trick," Whitlock attorney Nils von Keudell said Thursday. "Sometimes one word can make a difference."

The three counts in question allege Whitlock, the former director of nursing at what then was called the Woodstock Residence, failed to tell state authorities about possible mistreatment to one of the home's patients. In doing so, the charges allege, Whitlock, 58, endangered the lives of three other patients.

Von Keudell said Thursday that state law does not allow authorities to charge someone with neglecting one person by failing to take action involving another.

"Had they wanted to impose the type of liability (county prosecutors) are trying to impose, the legislature would have written the statute that way," he said. "They didn't."

Nichole Owens, criminal chief for the McHenry County state's attorney, said the prosecutor's office would contest von Keudell's reading of the statute.

"We dispute it and we'll have a (court) hearing on it," she said.

Whitlock and former co-worker Marty Himebaugh were indicted in April after a 15-month investigation into a string of suspected mercy killings in 2006 at the Woodstock Residence, a 115-bed facility since renamed the Crossroads Care Center of Woodstock.

Himebaugh, 57, of Lake in the Hills, faces four counts of criminal neglect of a long-term care facility resident and single counts of obtaining a controlled substance by fraud and unlawful distribution of a controlled substance.

Referred to as the "Angel of Death" in Whitlock's indictment, Himebaugh is not charged with killing any patients. Instead, charges allege she gave four patients dangerous doses of morphine or other drugs either without a prescription or at levels larger than prescribed.

All four of those patients, one woman and three men, died in 2006. Authorities have declined comment on their causes of death.

Whitlock faces five counts of criminal neglect of a long-term care facility resident and two counts of obstructing justice. Among the allegations are that she encouraged Himebaugh's actions and told another employee to destroy evidence to impede the later investigation.

Both women have pleaded not guilty and are free on bond.