A McHenry County judge rejected Gary Welsh’s arguments for freedom on Thursday, setting the stage for a hearing on whether the state can keep him in custody for the 1962 murder of a 3-year-old Harvard girl.
Welsh was 23 when prosecutors say he raped and murdered Marlene Casteel while baby-sitting her.
After 11 years in psychiatric hospitals, he was declared competent for trial and convicted of murder in 1973.
Now a white-haired man of 65, Welsh’s prison sentence is complete.
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But McHenry County prosecutors and the state attorney general are trying to commit Welsh to a psychiatric hospital under a 1998 law that allows sexually violent predators to be hospitalized when their prison sentences are complete. Prosecutors argue he is a pedophile and a danger to society.
He remains in custody while the state’s petition is being decided.
Welsh had asked Judge Sharon Prather to dismiss the state’s petition to commit him, arguing that the 1998 law refers to people convicted of first-degree murder.
But “first-degree” murder was not defined when Welsh was convicted in 1973 of “murder,” argued his public defender, Richard Behof.
“Back then, we only had murder,” Behof said.
Behof added that Welsh was never convicted of rape, so he does not qualify under the 1998 law, which says people can be committed if their crimes were sexually motivated.
Prather didn’t buy it, saying the elements of the crime, whether defined as “first-degree” murder or not, are the same.
Prather added that it will be up to the state to prove whether the girl’s murder was sexually motivated.
Outside the courtroom, Assistant Atty. Gen. Kelly Collins applauded Prather’s ruling.
“The legislature, I’m sure, intended to encompass all dangerous sex offenders,” she said.
Welsh is next due in court April 28. The date for a commitment hearing might be scheduled then.