Risks, rewards of Van Dyke testifying
The risks and rewards of critical decision
Jason Van Dyke’s lawyers so far have put on more than a dozen witnesses to make the case that the veteran Chicago Police officer’s fatal 2014 shooting of Laquan McDonald was justified.
But with the defense all but certain to wind up early this week, the question remains as to whether Van Dyke himself will take the stand.
It’s considered rare for criminal defendants to testify in a murder trial — and under the Fifth Amendment, it’s certainly their right not to — but Van Dyke’s defense hinges on the contention that the veteran officer acted in self-defense when he shot McDonald.
Self-defense cases often are the exception to the rule that a defendant’s testimony does more harm than good: while there is the risk of Van Dyke losing his cool under cross-examination from prosecutors, the question of what he believes he saw and why he pulled the trigger is likely to be something jurors will want to hear from his own mouth.
“Jurors are human; they want to hear from the defendant,” said defense lawyer Sam Adam Jr., who admits he tends to put his clients on the stand far more often than most of his peers.
With Van Dyke facing charges of first-degree murder and jurors likely to be given the option of convicting him on the lesser charge of second-degree murder, hearing from Van Dyke about what was going through his head the night of Oct. 20, 2014, could be a key factor in their decision.
“All a jury has to say for second-degree is, ‘You know what? I don’t think he should have fired, but I believe he believed that he should shoot, that he had a reasonable fear for his life.’ And then he could get something less than first-degree,” Adam said.
But most defense attorneys would say testifying carries more risk, said Robert Loeb, a defense lawyer and former prosecutor. While strong testimony could humanize Van Dyke for jurors, his answers are going to be parsed for how they line up with the fine legal distinctions of police use of force.
And if his lawyers ask him about his career as an officer, it could open a door for prosecutors to discuss complaints lodged against Van Dyke during his career, Loeb said. Then there is the video from a dashboard-mounted camera showing Van Dyke firing 16 shots at McDonald — images prosecutors are sure to play while they have Van Dyke on the stand.
“How well does he explain 16 shots? That’s the question,” Loeb said.
All signs point to Van Dyke staying in his seat beside his attorneys for the duration of the trial, Loeb said. The defense hired a computer animation firm to create a “laser-based analysis” purporting to re-create the shooting from Van Dyke’s point of view, and a useof-force expert and a psychiatrist hired by the defense are slated to testify. Combined, those witnesses can purport to attest to what Van Dyke saw and what was going on in his head.
“They have presented a lot of evidence that would go to Van Dyke’s state of mind,” Loeb said. “His lawyers might not perceive the need to add additional evidence.”