It’s the most crucial strategic decision so far for Jason Van Dyke’s defense team — and his lawyers could be forced to make it as early as Thursday.
Should they put the fate of the indicted Chicago police officer in the hands of the jurors they’ve spent two days questioning? Or should they ask Cook County Judge Vincent Gaughan to decide whether Van Dyke murdered Laquan McDonald?
That decision looms because 10 of the 12 jurors who would hear the case have now been chosen. Five were picked Wednesday — a black woman, who is the first African-American on the jury, a white man, a white woman and two Latina women, one of who is applying to be a Chicago police officer and wanted to be a cop since she was 12.
On Wednesday, when Dan Herbert pressed the judge about their deadline to make a decision, the judge told him, “when we get to 11, you’d better make a decision.” The judge soon relented, and said he’d give the defense team a night to think about it.
They fell one short of 11 jurors Wednesday, but one more pick could put Van Dyke’s lawyers on the spot — especially if it comes early Thursday.
Meanwhile, racial overtones exposed themselves when prosecutors twice accused Van Dyke’s lawyers of discriminating against jurors because of their race. Twice, Gaughan found Van Dyke’s lawyers had “race neutral” reasons for striking jurors.
“This case isn’t about black and white,” defense attorney Randy Rueckert insisted. “The press has made it black and white, for gosh sake.”
But Rueckert then turned the tables on prosecutors, twice accusing them of striking only white men. The judge shot him down.
Several legal experts predict Van Dyke will opt for the judge alone hearing the case — in part because Van Dyke will likely lean on a technical defense involving Illinois’ use-of-deadly-force law.
Herbert has argued the McDonald shooting was legally justified in part because McDonald had committed a forcible felony the night he was killed and used a deadly weapon, a knife, to try to escape — key factors in the law.
A judge would more likely set aside emotion and consider whether Herbert is legally correct.
Still, the notoriety of the Van Dyke case could upend conventional wisdom. While judges may be sympathetic to legal arguments, they might also consider community reaction — and the voters’ wrath at retention time.
“I think this is a jury case,” said Steve Greenberg, a veteran defense lawyer who represented former Bolingbrook police officer Drew Peterson in his trial for the murder of his third wife, Kathleen Savio.
“You take a bench trial when you have a case where you’re going to be arguing more subtle points of law, because with a judge, it’s lawyers talking to lawyers,” Greenberg said.
Despite the shooting video — sure to be powerful prosecution evidence — Greenberg said Van Dyke could have better odds taking his chances with a jury that could deadlock or acquit him.
Van Dyke’s best hope may be for a single hold-out juror — likely sympathetic to cops. A hung jury or mistrial would force the special prosecutor to consider whether to take Van Dyke to trial again.
Gaughan is a decorated veteran with strict rules in his courtroom. But he also rose through the ranks of the Cook County Public Defender’s office before becoming a judge.
He also apparently dislikes bench trials, going so far as to recuse himself when defendants go that route.
One veteran attorney with experience before Gaughan said simply: “I just don’t think Gaughan finds bench trials interesting.”
Jury selection on Wednesday had its own fascinating moments.
The Latina in her 20s applying to be a Chicago cop said she’d have no worries justifying her verdict to her police bosses. She has passed the written exam and faces the physical exam and interviews.
“No one is above the law,” she wrote in her questionnaire.
Another juror selected Wednesday, a white man in his late 20s or early 30s, said on the jury questionnaire he hadn’t heard of the case. But under prompting by Gaughan he conceded he had.
The man said he supports cops and the 2nd Amendment.
Another juror selected, a white woman in her 50s or 60s, has close ties to the judge’s family. Gaughan’s brother is the godfather of the woman’s sister, she said. Another of Gaughan’s brothers stood up in her father’s wedding.
When she saw the shooting video, she said her reaction was: “A lot of shots were fired.”
No attorney objected to her being on the jury.
