CRITICAL LEGAL QUESTIONS LOOM FOR VAN DYKE
Sentencing guidelines, unlikeliness of successful appeal, contempt charge are concerns facing convicted cop
Jason Van Dyke is now in jail and is likely to land in prison for years to come. While that much is clear, there are still some major legal loose ends.
Van Dyke, 40, is due back in court on Oct. 31, a hearing at which his lawyers will file post-trial motions and a date for his sentencing could be set.
Van Dyke’s conviction for seconddegree murder carries a 20-year maximum sentence, but possibly more concerning for his legal team and loved ones are his convictions for 16 counts of aggravated battery: Each one carries a minimum sentence of six years and a maximum of up to 30.
Worse still, if Cook County Judge Vincent Gaughan finds that any of the aggravated battery counts are tied to gunshots that inflicted “severe bodily injury,” at least some of those counts will run back-to-back, or consecutively, rather than serving one concurrent prison term for all the counts.
Van Dyke’s lawyers said Friday they intend to appeal his convictions, though on what grounds it was not clear. Before and during the trial, Van Dyke’s lawyers filed numerous and lengthy motions — including one with a 160-page report from a consultant — seeking to have the trial moved out of Cook County.
Though their consultant’s survey of prospective jurors found more than half their respondents thought Van Dyke was “definitely guilty,” it’s unlikely to sway an appeals court after Gaughan instituted an elaborate, weeklong jury selection process.
And, during that process, Van Dyke’s lawyers had seven chances to strike jurors they deemed likely to be unfair to their client — and used only five of the so-called “peremptory challenges.”
“That right there is going to tell a panel (of appeals judges) that even Van Dyke’s own lawyers didn’t think everyone picked was horribly biased against him,” said one veteran defense lawyer.
Van Dyke also faces another potential conviction, for contempt of court, a charge Gaughan himself leveled at Van Dyke after Van Dyke gave interviews to media outlets just before jury selection began — a violation of a gag order Gaughan had put in place soon after the case landed on his docket.
The events of the Laquan McDonald shooting may get another rehash next month, when three of Van Dyke’s fellow officers are set to go to trial on conspiracy and obstruction of justice charges for allegedly attempting to cover for Van Dyke as the department investigated what happened.
Among the three set to stand trial is Van Dyke’s partner, Joseph Walsh, who testified as a prosecution witness at Van Dyke’s trial. On the witness stand last week, Walsh largely
stuck by his account of the shooting, even acting out the role of a knifewielding McDonald for the jury on cross-examination.
Prosecutors in Van Dyke’s trial did not point out discrepancies between Walsh’s description of the shooting and what appears on the dashcam footage, or, more importantly to the obstruction of justice case against him, how they differ from statements Walsh made to investigators that appeared in reports.
Walsh, for his part, maintained that the video did not show the shooting from the angle that he and Van Dyke shared. It was an argument that didn’t work for Van Dyke in front of a jury. Walsh and fellow officers Thomas Gaffney and David March are going to try their luck in a bench trial.