Van Dyke jurors have a chance for compromise: second-degree murder

SHARE Van Dyke jurors have a chance for compromise: second-degree murder

Defense attorney Dan Herbert, center, reacts to Cook County Judge Vincent Gaughan’s remarks during the trial for Chicago police Officer Jason Van Dyke, right, in the shooting death of Laquan McDonald, at the Leighton Criminal Court Building on Wednesday. To the left is Special Prosecutor Joe McMahon. | John J. Kim/ Chicago Tribune pool photo

The jury considering the evidence against Chicago Police Officer Jason Van Dyke was given an opportunity for compromise Thursday.

Van Dyke faces two counts of first-degree murder, 16 counts of aggravated battery and one count of official misconduct. But Cook County Judge Vincent Gaughan told jurors they have a path for finding him guilty of second-degree murder.

If that happens, Van Dyke would not necessarily have to serve prison time.

Gaughan refused to reveal the jury instructions in Van Dyke’s case until he read them to the jury after closing arguments Thursday. Many legal experts have said the case could turn on what the judge told the jurors.

To find Van Dyke guilty of second-degree murder, jurors first have to agree he is guilty of first-degree murder beyond a reasonable doubt. That is the highest standard of proof in the court system.

To find him guilty of first-degree murder, jurors must find that Van Dyke “performed the acts which caused the death of Laquan McDonald” and when he did so, he “intended to kill or do great bodily harm to Laquan McDonald or he knew that such acts would cause death to Laquan McDonald or he knew that such acts created a strong probability of death or great bodily harm to Laquan McDonald” and he “was not justified in using the force which he used.”

But if they get that far, jurors must then consider whether Van Dyke’s defense team proved a mitigating factor by a “preponderance of the evidence” — in other words, whether it is more likely true than not.

The mitigating factor Van Dyke’s defense must prove under those circumstances is that Van Dyke, “at the time he performed the acts which caused the death of Laquan McDonald, believed the circumstances to be such that they justified (the) deadly force he used, but his belief that such circumstances existed was unreasonable.”

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