Midnight exhumation, blocked from view, is plan for exhumation of gangster John Dillinger

CHICAGO (WLS) -- There are 43 days and counting to the date gangster John Dillinger is to be unearthed-if some of his family members win a court fight.

Kinfolk of the Depression-era outlaw are pressing an Indiana court to let the New Year's Eve exhumation proceed..."after hours, under cover of a canopy and with adequate security" according to newly filed court records obtained by the I-Team.

The gangster's kin says that Crown Hill Cemetery should not be allowed to block digging up the body just because he was an "infamous bank robber." That is a position that Dillinger family members claim the cemetery has only recently taken, after originally cooperating in the project to exhume the body for DNA testing to ensure it is really Dillinger.

The cemetery claims Indiana law only allows exhumation for an autopsy or reburial elsewhere.

Michael Thompson, who says Dillinger was his uncle, states that if state law is determined to not apply in this case-then he wants a declaratory judgement from the court-clearing the way for the year-end dig.

Further, Thompson's attorneys say that state law can't be retroactive. Dillinger was buried in 1934 after being gunned down by federal agents outside Chicago's Biograph Theatre...and the law regulating exhumation went into effect in 2007.

Dillinger relatives want to conduct the DNA tests because they believe an imposter is buried in the grave. They say that NO relatives have filed official objections to the exhumation as Crown Hill claims.

A hearing is scheduled in the Marion County, Indiana case two weeks from Wednesday, on Dec. 4...less than four weeks before the date that a state permit allows for exhumation. Dillinger relatives' attorneys decline to comment on the case and attorneys for the cemetery have not replied to numerous messages left by the I-Team.