Jason Van Dyke unlikely to be sentenced this year in Laquan McDonald’s murder

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Jason Van Dyke | Rock Island County Sheriff’s office

Jason Van Dyke is unlikely to be sentenced to prison for the Laquan McDonald shooting this year.

Van Dyke on Wednesday returned to Judge Vincent Gaughan’s courtroom for the first time since a jury four weeks ago found him guilty of second-degree murder and 16 counts of aggravated battery. Van Dyke, wearing a mustard-yellow jail jumpsuit, walked into court escorted by sheriff’s officers, his unshackled hands clasped behind his back.

Van Dyke said nothing during his roughly 10 minutes in the courtroom, as Gaughan set a Dec. 14 date for yet another hearing on two motions filed by Van Dyke’s lawyers, a motion for a new trial and another seeking to overturn the guilty verdict and acquit Van Dyke.

The post-trial motions are a routine step in what is likely to be a months- or years-long appeals process for Van Dyke. If Gaughan denies Van Dyke’s motions for acquittal and a new trial—which he is almost certain to do —the judge will set yet another set of deadlines for motions from Van Dyke’s lawyers and Special Prosecutor Joseph McMahon that will outline how long each side believes Van Dyke ought to serve in prison.

Addressing reporters in the courthouse lobby after the hearing, Van Dyke’s lead attorney, Dan Herbert, said the defense team believed that Van Dyke’s sentence should be based on the second-degree murder conviction, which carries a sentence of as little as probation and no more than 30 years in prison. Other legal experts, Herbert acknowledged, have suggested that Van Dyke should be sentenced based on his convictions of aggravated battery with a firearm, each of which carries a sentence of six to 30 years.

“This is about as clear as mud, the sentencing ranges here,” Herbert said.

Van Dyke was able to spend a few minutes with his family after the brief hearing. Van Dyke, who was taken into custody immediately after the verdict, was transferred out of Cook County Jail for safety reasons within days of the guilty verdict. He since has been kept in isolation at the county jail in Rock Island, Ill., a small town along the Mississippi River, three hours west of Chicago.

“He is doing OK, but he is sad, and he is scared, and he is lonely,” Herbert said.

It seems unlikely that the motions by the defense will sway Gaughan. His motion for a new trial rehashes defense arguments that Van Dyke’s trial should have been moved out of Cook County, motions that Gaughan struck down several times. Van Dyke’s lawyers argued that Gaughan forced their hand by not ruling on whether to move the trial until after the jury selection process was all but done, holding off on a final ruling until after the panel was sworn in.

In a separate motion, seeking to have Van Dyke acquitted, the defense largely renewed arguments they made in seeking to dismiss the charges ahead of trial, including that state law allows police officers to use deadly force against an offender who has committed forcible felonies, spelling out several such crimes committed by McDonald as he fled from a truck lot where the 17-year-old had allegedly been stealing from vehicles and had threatened a driver who confronted him.

Van Dyke has no interaction with other inmates, and spends 24 hours a day in a cell, mostly reading books about sports, as well as “Marley & Me,” a memoir of dog ownership by columnist John Grogan, Herbert said.

Previous developments:

10:09 a.m. Still no sentencing date for Jason Van Dyke

Jason Van Dyke appeared in court Wednesday wearing a yellow jail jumpsuit, escorted by two sheriff officers. Special Prosecutor Joseph McMahon asked for five weeks to reply to the new motions filed by Van Dyke’s legal team.

Cook County Judge Vincent Gaughan said he wants all motions filed by Dec. 6. He set a hearing on the motions for Dec. 14.

No sentencing date has been set.

9:41 a.m. Van Dyke asks for acquittal or new trial ahead of court hearing

Former Chicago Police Officer Jason Van Dyke’s lawyers asked Cook County Judge Vincent Gaughan on Wednesday to either acquit him or grant him a new trial.

The requests — routine following a conviction in a criminal case —were made in two motions filed ahead of Van Dyke’s court appearance. Van Dyke’s lawyers complain, among other things, that Gaughan delayed his decision not to move the trial out of Cook County until after a jury had been sworn.

“With no ruling on the motion for a change of place of trial, Mr. Van Dyke was deprived of the information he needed to make an informed and intelligent decision on whether to waive his right to a jury trial,” defense lawyer Daniel Herbert wrote.

Herbert also said the refusal to move the trial was unfair.

“Extensive pretrial publicity in this case cemented a narrative of guilt in the public consciousness,” Herbert wrote. “The search of news databases returned 2,124 articles from the Chicago Tribune and Sun-Times that reference the shooting, and 866 additional publications in other local papers between October 20, 2014, and March 25, 2018.”

Herbert also said Gaughan improperly instructed the jury.

In asking for the acquittal, Van Dyke’s lawyers again pointed to state law revolving around the use of deadly force by police officers. They said prosecutors failed to refute at trial “the fact that Jason Van Dyke was legally authorized to use deadly force against Laquan McDonald.” That’s because they said McDonald was resisting a lawful arrest, had committed a forcible felony and was trying to escape by use of a deadly weapon.

“This case should have been dismissed pursuant to defense motions, and a jury should never have heard the case,” Herbert wrote.

Gaughan shot down similar arguments ahead of the trial.

Defense attorneys also insisted the prosecutors’ evidence actually proved Van Dyke’s innocence.

Morning update:

Jason Van Dyke will likely learn his sentencing date Wednesday as he returns to court for the first time since he was convicted of second-degree murder in the 2014 shooting of Laquan McDonald.

The former Chicago cop was taken into custody Oct. 5 immediately after jurors delivered guilty verdicts on the second-degree murder count and 16 counts of aggravated battery.A few days later, Cook County officials had Van Dyke moved from the Cook County Jail to the jail in Rock Island County, three hours west of the city and just a few blocks from the Mississippi River.

The court hearing Wednesday is expected to be uneventful, with Van Dyke’s lawyers likely to file post-trial motions that are the first bid to have his conviction overturned. Such motions are routine following any guilty verdict, and the appeals process typically takes months or years to play out.

Judge Vincent Gaughan is likely to set a date for Van Dyke’s sentencing hearing, and a schedule for Van Dyke’s lawyers and Special Prosecutor Joe McMahon to present their arguments over how long the veteran police officer should be sentenced to prison.

Legal experts disagree about how Van Dyke’s sentence will play out. A second-degree murder conviction can carry a probation-only sentence, but defendants typically are sentenced based on the most serious charge for which they were convicted. In Van Dyke’s case, it would appear that the multiple convictions for aggravated battery are the most serious he faces. Each of the 16 counts carries a minimum sentence of six years in prison, and up to 30 years.

Typically, the prison sentences for multiple counts would run concurrently, putting the defendant behind bars only for whatever the longest term of years he’s assigned for any of the counts of conviction. But sentencing laws for aggravated battery mandate that sentences for that crime run consecutively —that is, back-to-back —on counts which caused the victim “severe bodily injury.”

If the judge finds each of the 16 shots that struck McDonald caused severe bodily injury, the 16, six-year minimum sentences for each count of aggravated battery could tally 96 years in prison—though most experts expect Van Dyke to be sentenced to a far shorter term.

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