‘NO CONSENSUS’ AMONG EXPERTS FOR VAN DYKE’S SENTENCE RANGE
Chicago police Officer Jason Van Dyke is set to learn on Friday how long he’ll spend in prison when Cook County Judge Vincent Gaughan hands down his sentence for the 2014 murder of Laquan McDonald in an onduty shooting.
Sentencing math is complex calculus — the most popular manual on state prison terms and enhancements runs more than 650 pages — and Van Dyke’s case has stirred spirited debate among veterans of the dusty Leighton Criminal Courthouse at 26th Street and California Avenue.
Parsing sentencing laws and the facts presented at Van Dyke’s monthlong trial has become a hot topic on defense lawyer message boards and social media, said Stuart Smith, a veteran defense attorney who has been active in those debates.
“There is no consensus, and the opinions are so broad as to be from a possibility of probation, to a minimum of 96 years,” Smith said. “There’s people who fall anywhere in between, because this is an unusual case with unusual facts, that was charged in a way that is different from what we’re used to seeing in Cook County.”
Van Dyke’s attorneys are expected to make the argument that their client is eligible for probation and should spend no more time behind bars than the months he has spent in jail since he was found guilty in October of second-degree murder and 16 counts of aggravated battery with a firearm — one for each bullet he fired into 17-yearold McDonald.
Special Prosecutor Joseph McMahon, like most prosecutors, is likely to ask for the maximum sentence, but there is a broad range of estimates as to what the max might be, said Stephen Richards, a longtime defense lawyer who once served as a public defender in Gaughan’s courtroom.
The closest thing to a conventional wisdom is that Gaughan, one of the most senior jurists in Cook County and a former public defender, will sentence Van Dyke to something near the middle of the 30-year maximum sentence for aggravated battery, Smith said. How Gaughan gets there is anyone’s guess.
Van Dyke’s indictment was unusual not just because it included a murder charge against a police officer involved in an onduty shooting — the first such charge in Cook County since the 1960s — but because a special grand jury heaped those 16 separate aggravated battery counts on the 41-year-old officer. It’s rare for prosecutors to charge each gunshot as a separate crime, and rare for them to charge aggravated battery alongside counts of murder at all in a shooting where the victim died.
Each of those counts is a Class X felony, meaning it is one of the most serious offenses on the books, with a sentence of at least six and as many as 30 years for each count.
Some attorneys who spoke to the Chicago Sun-Times said that the sentence enhancement for gun crimes that do serious injury to the victim could double the maximum. State law does appear to eliminate the potential that he gets a 30 -or 60-year sentence for each of the aggravated battery counts — which would add up to sentences of 480 or 960 years, respectively — capping his total potential jail time at 120 years.
Some attorneys have said that Van Dyke faces a minimum of 96 years, based on 16 prison terms of the minimum six-year sentence for each aggravated battery count, a reading of the law that Richards and Smith agreed was plausible but unlikely to be one Gaughan settles on.
The argument that Van Dyke is eligible for probation also seems likely to fall flat with the judge, Richards said. State law holds that a defendant be sentenced based on the most serious charge on which he or she was convicted, and Van Dyke’s lawyers are likely to argue that second-degree murder is the toughest charge, though it carries a sentence of as little as probation or between six and 20 years in prison.
“I just don’t think that argument is going anywhere,” Smith said. “Aggravated battery is a Class X felony, and second-degree is a Class 1, which is lower. And the max sentence for aggravated battery is longer, which would seem to argue it is the more serious charge.”
Van Dyke also has no criminal history, and McDonald’s murder was not a typical shooting. Gaughan, a decorated military veteran and active member of the American Legion, tends to look kindly on defendants who have served their country or community, Richards said.
“There are many ways to fashion a sentence when you’re a judge,” Richards said. “There’s some number of years in his mind that he thinks is just, and he will get to that number, somehow.”