Picking jury in Van Dyke case may be trial in itself
Selection is part psychology, legal tactics, guesswork
One by one, dozens of strangers will be summoned into a small chamber behind Cook County Judge Vincent Gaughan’s courtroom on Monday to face a battery of questions about private details of their lives.
Attorneys will want to know more about their professions, their families, their homes, their history with police. At the heart of the questions will be one simple issue: Who can give Chicago police Officer Jason Van Dyke a fair trial?
The jury selection process is always a delicate one — part psychology, part legal strategy and part guesswork. But given the high stakes and unusual nature of the Van Dyke case — a national news story that led to protests and major police reforms locally — it promises to be an even thornier exercise.
When a police officer is on trial, the usual assumptions about what kind of juror each side wants are turned on their head, with prosecutors seeking jurors who lean toward skepti-
cism of cops and the defense looking for people with strong connections to law enforcement.
Prosecutors, who usually enjoy the benefits of wearing the so-called white hats, may be most outside their comfort zones, say legal experts contacted by the Tribune, because in Van Dyke’s case, it will be lawand-order versus law-and order.
That’s one reason why it may take a week or longer to pick 12 jurors and four alternates.
“We know the prosecution has a tough task ahead of them because the jurors know the importance of police officers,” said Doug Godfrey, a former prosecutor and a professor at Chicago-Kent College of Law. “We don’t need drug dealers. We don’t need petty thieves. But we need police officers.”
Van Dyke faces six counts of first-degree murder, 16 counts of aggravated battery and one count of official misconduct in 17-yearold Laquan McDonald’s slaying in October 2014.
Police dashboard camera video released by court order more than a year later showed Van Dyke opening fire within seconds of exiting his squad car as McDonald, holding a knife, appeared to walk away from police, contradicting reports from officers at the scene that the black teen had threatened officers with the weapon. The release of the graphic video led to months of protests and political upheaval.
The defense has argued impartial jurors cannot be found in Cook County because of the overwhelming amount of publicity surrounding the shooting and the charges. Van Dyke’s attorneys even asked last week for the entire jury pool to be dismissed because the candidates had to walk by a mass of protesters as they entered the courthouse one by one.
Legal experts, however, told the Tribune that impartial jurors can be found even in such a heater case, particularly with a jury pool of this size — about 200 people.
“It may be difficult, but I don’t think it will be impossible,” said attorney Antonio Romanucci, who has handled several high-profile civil cases involving allegations of police misconduct. “This is a county of 5 million people. They’ll find enough people who can serve.”
The task of questioning potential jurors could be arduous, with Gaughan bringing them behind closed doors one at a time to speak with him and attorneys.
The would-be jurors came to the courthouse last week to fill out questionnaires.
Those prospective jurors determined to be biased will be removed from consideration for “cause.” Beyond that, each team of attorneys will have seven “peremptory challenges” to reject potential jurors without needing to give a particular reason.
The process, experts told the Tribune, is often more about weeding people out rather than finding people they want to keep.
One key goal, said Chicago-based jury consultant Alan Tuerkheimer, will be to tease out the attitudes of potential jurors toward police.
The defense will want jurors “who don’t have a lot of run-ins with police officers, that think police officers are there to protect and serve,” Tuerkheimer said. “They probably have relatives who are on the job.”
By contrast, prosecutors want those who “don’t necessarily put police on a pedestal,” he said.
The racial aspect of the case will be inescapable with a white officer and black teen involved. The case, after all, has laid bare many of Chicago’s longstanding racial fault lines.
Indeed, Van Dyke’s attorneys already have signaled their concerns about black jurors from Cook County. Based on an internal poll, the defense contended that 98.5 percent of local African-Americans who have seen the video don’t believe Van Dyke was in danger when he shot McDonald — an opinion that strikes at the heart of the officer’s selfdefense argument.
Legal precedent holds that attorneys cannot strike jurors because of their race.
The Van Dyke prosecutors can be expected to bring that up if they sense that the defense is systematically removing AfricanAmericans from the jury.
Van Dyke’s lead attorney, Daniel Herbert, was accused of excluding jurors based on race during a criminal trial for a different on-duty police shooting last year. Though Herbert denied the allegation levied by federal prosecutors, the judge refused to let him use a peremptory challenge to excuse one particular black man, making him the 12th and final juror on the panel.
The officer was later convicted of excessive force for firing 16 times into a moving vehicle filled with teens. He was sentenced to five years in prison.
In most cases involving race-based juror rejection, the defense only needs to give a reason for excluding that person other than race — even something as simple as “I don’t like the way he was looking at Officer Van Dyke,” Tuerkheimer said. “It really doesn’t have to be real substantive.”
Attorneys should pay particular attention to where the potential jurors live, said veteran attorney Lawrence Wolf Levin.
A black juror from a middle-class Chicago neighborhood such as South Shore or Kenwood will see the case differently than one from the more violent Englewood neighborhood, he said.
Levin said he believes the team of special prosecutors will be at a disadvantage in that regard because most of them are from far west suburban Kane County. Attorneys more familiar with Chicago can draw better conclusions about jurors based on the neighborhoods or suburbs they come from, he said.
The prosecution should look for jurors from Chicago’s Gold Coast or the more affluent suburbs, particularly if they have families, Levin said. They could see Van Dyke's actions as perpetuating city violence and creating more instability, he said.
“They’re going to believe that what the police officer did was a vehicle to create violence, further violence, and they’re going to take exception to it,” said Levin, who believes jurors often try “to send a message.”
As a former prosecutor, Godfrey said he favored putting teachers and nurses on juries. Both professions require an ability to listen and judge a person’s credibility. He also preferred supervisors who have made employment decisions.
“I like people who have made difficult decisions about people’s credibility,” he said. “You want someone who knows what it’s like to make decisions that have serious ramifications for other people.”
Defense attorney Sam Adam Jr., who won an acquittal for singer R. Kelly during a jury trial in Gaughan’s courtroom in 2008, said he’d look for prospective jurors who work as crossing guards, air traffic controllers or emergency room nurses if he were representing Van Dyke.“I’d also want people who weren’t just in the military, but who have combat experience as well,” Adam said.
“I’d want people who know what it’s like to make split-second decisions and have to live with the consequences. From a defense lawyer’s perspective, those are the people who will best relate to the pressure Jason Van Dyke felt.”
When attorney Romanucci selected a jury for a high-profile civil case involving a Chicago police officer accused of shooting a close friend after a night of heavy drinking, the process was more about rejecting candidates than picking them.
Before the trial, he conducted at least a half-dozen focus groups to create a profile of both an ideal juror for his side and the type they wanted to avoid.
“We clearly wanted females, preferably mothers,” Romanucci said. “We didn’t want anyone who had a connection with law enforcement. It would have been too much of a risk.”
Once the prospective jurors completed their questionnaires, the attorneys scoured them, looking for clues about their personalities and beliefs based on the books they read, their sources for news and the movies they watched.
When trying to prove a cop had broken the law, for example, Romanucci wanted someone more likely to watch MSNBC every night than the Fox News Channel.
Even when armed with all that information and the advice of a jury expert, though, not every juror fit the ideal profile for Romanucci’s side.
When he got down to his last challenges, Romanucci did not object to a suburban firefighter who had several family members employed as Chicago police officers.
It was a gamble at the time, but the case included allegations that the officer interfered with paramedics while they were trying to treat his friend. Romanucci believed a firefighter would understand the seriousness of such actions.
“We thought he would be able to grasp the issues and even explain them to the jury during deliberations,” Romanucci said.
In the end, a predominantly female jury, led by a suburban forewoman, found that Chicago police Officer Patrick Kelly likely shot and severely injured his best friend, Michael LaPorta. Jurors awarded LaPorta $44.7 million, the largest jury award for police misconduct in Illinois history.
Godfrey often shakes his head at some approaches during jury selection, believing attorneys often equate wonky sociological theories with scientific fact. Not every social worker will side with the defense each time, he said, just as military veterans don’t always side with the prosecution.
“There’s a lot of folklore in jury selection and a lot of pseudo-psychology,” he said.
When jury selection begins in earnest Monday, two unanswered questions loom: Could the trial end up moving outside Chicago, where fewer people may have seen the video of Van Dyke shooting McDonald? And is Van Dyke really going to place his fate in the hands of a jury, an unusual move for Chicago cops in the past to make?
The judge has said he will delay deciding whether to hold the trial outside Chicago until after jury selection begins. If both sides struggle to find a dozen people who can promise to be impartial, it’s possible the judge would bring in a jury from outside Cook County or even move the trial somewhere else.
The yet-to-be-rendered decision could be why the defense has not yet formally announced whether it wants a jury to decide Van Dyke’s fate. Even with the first prospective jurors set to be interviewed this week, Van Dyke’s team still has time to choose to let the judge decide the officer’s guilt or innocence at a bench trial.
Van Dyke can automatically switch to a bench trial at any point before all 12 jurors have been sworn in. If he waits until after the jury has been impaneled, though, Gaughan would have to give his approval, seemingly unlikely after all the work the judge has already done toward a jury trial.
Under Illinois case law, the judge could deny the request by finding it to be waste of government resources and money.
At this point, though, the trial appears headed for a decision by a jury, especially after Van Dyke endured Gaughan’s wrath for violating a long-standing gag order in the case.
The judge slightly hiked Van Dyke’s $1.5 million bond by $2,000 Thursday after the officer granted two media interviews just days before the jury pool was sworn in.
In a 40-minute, tightly controlled interview with the Tribune late last month, Van Dyke described the shooting as his "darkest day" on the job and expressed his fear of spending the rest of his life in prison.
In raising Van Dyke’s bond, Gaughan would not speculate on whether the interviews were an attempt to influence the jury pool or if they proved beneficial to the defense team. Those kinds of questions, he has said repeatedly, can be figured out during jury selection.
Legal experts doubt Van Dyke’s media appearances — or any other of the other sideshows the case has endured since the video’s release — will stand in the way of finding unbiased jurors in Cook County – or at least jurors in Cook County who say they are unbiased.
“It’s going to be surprisingly easy (to pick a jury) because, at the end of the day, all the juror has to say is ‘I can be fair and impartial,’ ” Godfrey said.
“You want someone who knows what it’s like to make decisions that have serious ramifications for other people.” — Doug Godfrey, a former prosecutor and a professor at Chicago-Kent College of Law