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Judge to lawyers: Don’t call Laquan McDonald a ‘victim,’ let the jury decide

In this Oct. 20, 2014 frame from dash-cam video provided by the Chicago Police Department, Laquan McDonald, right, walks down the street moments before being fatally shot by CPD officer Jason Van Dyke sixteen times in Chicago. | Chicago Police Department via AP file photo

Chicago Police Officer Jason Van Dyke is charged with the murder of Laquan McDonald.

But when his case goes to trial, as it’s expected to next month, Cook County Judge Vincent Gaughan said he will not allow prosecutors to refer to McDonald as a “victim” — at least not until closing arguments, and only if the evidence supports it.

That was among several rulings Gaughan made Wednesday during a morning hearing as he sifted through requests from Van Dyke’s defense team to bar certain evidence from the trial.

The judge also shot down a defense bid to bar the infamous dashcam video of Van Dyke fatally shooting the 17-year-old McDonald 16 times on Oct. 20, 2014, as well as a request that prosecutors not refer to McDonald’s death as a homicide.

Chicago police Officer Jason Van Dyke listens in during the hearing for the shooting death of Laquan McDonald, at the Leighton Criminal Court Building, Wednesday, Aug. 15, 2018. | Antonio Perez| Chicago Tribune pool
Chicago police Officer Jason Van Dyke listens in during the hearing for the shooting death of Laquan McDonald, at the Leighton Criminal Court Building, Wednesday, Aug. 15, 2018. | Antonio Perez| Chicago Tribune pool

Gaughan held Wednesday’s hearing in open court, despite a request from defense lawyers to keep it sealed. He also insisted that a defense attorney read the title of each motion out loud to make clear what evidence was at issue. However, the names of some potential witnesses were not used.

Van Dyke’s trial is scheduled to begin in only three weeks, prompting hearings at the Leighton Criminal Courthouse at 26th and California nearly every day this week.

As he ruled on whether McDonald should be referred to as a victim at trial, Gaughan noted that Van Dyke is expected argue self defense. Gaughan said the issue of whether McDonald was a victim will be an issue for the jury to decide.

That assumes Van Dyke will not choose to have Gaughan decide the case at a bench trial.

“If it’s justified — justified use of force — then there is no victim,” Gaughan said. “Certainly there is a person that’s dead as a result of this tragic situation, but that doesn’t mean that the person is a victim, legally.”

Defense lawyers also asked the judge to bar any allegation that police tampered with microphones or cameras in police squad cars or at a nearby Burger King. Prosecutors told the judge they did not plan to make such an allegation.

And finally, the judge asked both sides to file memos about whether McDonald had committed a forcible felony the night he was shot. That point could become crucial at trial.

Both sides are expected to return to Gaughan’s courtroom Thursday, when the judge has said McDonald’s mother, Tina Hunter, must appear for a hearing or be barred from next month’s trial. If she appears, Gaughan is likely to seal his courtroom for the hearing.

Van Dyke’s lawyers hope to call Hunter, among others, to testify at trial about McDonald’s “propensity for violence.” That testimony could support Van Dyke’s claim of self defense.

First, Gaughan must determine whether her testimony can be admitted. She failed to appear at a hearing last month that could have determined the issue. And Tuesday, Gaughan said there would be consequences if she keeps ducking a subpoena.

“Tell her she’s not going to come to the trial unless she appears,” Gaughan said.