Van Dyke defense starts presenting case Monday
From the opening moments of Chicago police Officer Jason Van Dyke’s murder trial, his defense team has sought to paint him as an upstanding cop and family man, a dad who made breakfast for his wife and kids and dutifully fulfilled a “honey-do” list before heading to work on the day his life would change forever.
At the same time, 17-year-old Laquan McDonald was on a “wild rampage through the city,” using PCP and threatening bystanders with a knife before crossing paths with Van Dyke, the officer’s attorney Daniel Herbert told jurors.
The evidence, Herbert said, would show that Van Dyke had no choice but to shoot a dangerous criminal. Now comes Herbert’s best opportunity to make good on that promise as the defense begins presenting evidence Monday.
In order for Van Dyke to walk
free, the defense will have to convince jurors that he feared for his life in spite of an infamous video that shows McDonald walking away from police.
Even after a few possible missteps by prosecutors during their case, it’s an arduous task: one the defense says it will accomplish through experts, an animated video of the shooting from Van Dyke’s perspective and witnesses intended to make McDonald look violent and out-of-control.
And in what surely would be the focal point of the trial, Van Dyke himself could take the witness stand.
“It’s their case to win at this point,” veteran defense attorney Joseph Lopez told the Tribune. “It’s all there for the taking.”
Van Dyke, 40, is at the center of the most heated Cook County murder case in years. The police dashboard camera video showing him shooting McDonald 16 times has been played around the world. The graphic images, released in November 2015 by court order, sparked protests and political upheaval across the city.
Perhaps the most crucial decision the defense faces is whether Van Dyke will testify on his own behalf.
“Jurors want to hear from defendants in most cases,” said Jeffrey Urdangen, director of the Center for Criminal Defense at the Bluhm Legal Clinic at Northwestern University. “It’s extraordinarily rare in a self-defense case that the defendant does not testify.”
But there are hints that he might not take the stand, legal experts told the Tribune. His partner that night, Joseph Walsh, who testified last week under a grant of immunity by prosecutors, said both officers had a “reasonable fear” for their safety — the legal standard for a justified police shooting.
“You should never testify in a criminal case, and in this case, Van Dyke doesn’t need to,” Lopez said. “Walsh has already done a lot for him.”
In addition, the defense has commissioned an animated video purporting to show the shooting from Van Dyke’s point of view. A psychologist is also expected to testify about the physiological effects that an officer experiences during a shooting, including alterations in perception and memory. Those could be an effective substitute for Van Dyke’s testimony, attorneys said.
No one, however, could provide jurors with insight into Van Dyke’s state of mind better than Van Dyke himself.
The mention of the officer’s home life in opening statements makes defense attorney Jennifer Blagg think the officer’s lawyers plan to put him on the stand. Anything presented in openings should be backed up by subsequent evidence, and Herbert “mentioned certain things that only Van Dyke or his immediate family could have personal knowledge of or attest to,” Blagg said.
The decision to testify or not is so crucial that it rests entirely with the defendant. An attorney cannot make that choice or overrule the defendant’s wishes.
It is not without risks. Testifying would open up Van Dyke to cross-examination from the team of special prosecutors trying him for first-degree murder.
“What I might think would happen is they’d be playing that video in slow motion a number of times, saying, ‘What were you thinking here after the first shot? Did you believe there was an imminent fear? What about the eighth shot. What about the 14th shot?’” Urdangen said. “And the guy’s on the ground, he’s virtually dead, he’s not moving. I don’t know how you have a good answer for those types of cross-examination questions.”
David Erickson, a retired Illinois Appellate Court justice and professor at Chicago-Kent College of Law, told the Tribune he does not think Van Dyke necessarily must take the stand to win his case.
But he believes the officer’s interviews with the Tribune and WFLD-Ch. 32 in the week before jury selection served, in part, as a trial balloon to see how he would fare under questioning. While not the same as a cross-examination, the interviews showed Van Dyke could answer questions without becoming flustered and convey a humanity that is not seen in the video.
“He came off more sympathetic than I thought he would,” Erickson said.
Another key element of the defense case concerns its attempt to convince jurors that McDonald was a violent, out-of-control threat to public safety. They are expected to put his troubled, erratic life under a microscope — a strategy that has the potential to backfire in front of jurors, experts told the Tribune.
Under Illinois law, someone making a claim of selfdefense may try to introduce evidence of the victim’s violent history and character in certain circumstances, even if the defendant could not have known about that history at the time of the incident.
In opening statements, Herbert hinted he plans on calling to the stand the man who initially called 911 on McDonald the night of the shooting. Rudy Barillas, who saw McDonald trying to break into trucks and called police, is expected to say that after he hung up, McDonald pulled out a knife and tried to stab him.
It is not clear what else Judge Vincent Gaughan will allow the jury to hear about McDonald’s past. The judge has conducted some pretrial hearings in private and sealed many court records. But he gave the defense permission to call several people with knowledge of violent incidents in McDonald’s past, and many who knew him — from McDonald’s mentor to probation officers and juvenile court staff — have been subpoenaed by the defense as potential witnesses.
“You always have to worry about dirtying up the victim,” Blagg told the Tribune. “But here it’s really important for jurors to know who Laquan McDonald was because it supports the defense theory of the case (that) he was a violent kid, he put himself in this position, and in the jurors’ minds, it makes Laquan McDonald a less sympathetic victim.”
The defense has even attempted to put McDonald’s mother, Tina Hunter, on the stand to talk about her son’s troubled past. Since the proceedings were conducted behind closed doors, Gaughan’s final determination on whether she must testify is not known.
The defense also intends to call expert witnesses from around the country, including one on police useof-force policy, a former firearms instructor who will say Van Dyke was following his police training and a pathologist likely to testify that the gunshot wound to McDonald’s chest was the fatal injury.
During the prosecution’s case, the defense spent a lot of time fighting with witnesses over which bullets killed McDonald and how quickly he died. The strategy puzzled many veteran attorneys who thought it was an unwise move and could annoy jurors. While the bullet order and quick death may speak to Van Dyke’s intent to kill — one of the tenets of a first-degree murder charge — that nuanced argument could be lost on a jury overwhelmed by the raw emotion of the shooting video.
“If they really wanted to go down that road, they should have gone with a bench trial,” said former federal prosecutor Renato Mariotti. “Otherwise, you’re asking jurors to think as if they’re lawyers or judges.”
Instead, Mariotti said the defense needs to spend next week speaking to jurors in more compelling, human terms. At every turn, he said, they have to put jurors in Van Dyke’s place, to remind them of his state of mind as he saw McDonald with the knife.
“In one sense, the defense has a bit of an uphill battle,” he said. “In my experience, jurors don’t make decisions based on intellectual arguments. They go with their gut, and their gut will tell them that the video doesn’t look very good for Van Dyke.”