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Van Dyke has until Friday to decide judge or jury as 12th juror selected in case

Chicago Police Officer Jason Van Dyke walks into the Leighton Criminal Court Building in Chicago last month.| Ashlee Rezin / Chicago Sun-Times file photo

Twelve or one?

That’s the question Chicago cop Jason Van Dyke and his legal team are facing 9 a.m. Friday when they appear before Cook County Judge Vincent Gaughan.

It’s the most critical early decision the defense will have.

Do they go forward with 12 jurors they’ve picked over three days this week or leave it in the hands of one man, Gaughan, to decide whether Van Dyke murdered Laquan McDonald when he shot the 17-year-old 16 times in October 2014.

Jury experts and veteran defense attorneys cite a host of factors that could go into a decision by Van Dyke and his legal team, and there is no consensus on what he should do.

A defendant waiting this long to decide a bench or jury trial is not typical for a criminal case, but not much is typical in a case that’s gripped the attention of the city, roiled the streets with protests and changed the trajectory of political careers.

In a case that’s notorious for a police dashcam video of the shooting, seen by millions, several potential jurors said they hadn’t seen it.

One juror, a young Latina woman, is currently applying to be a Chicago Police officer and has wanted to be a cop since she was 12. She made the cut.

And in one of the most racially charged cases in recent memory — a white cop shooting a black teen — there’s but one African-American on the jury of 12 — a black woman — plus a black man who’s an alternate.

Video by Ashlee Rezin

McDonald’s great uncle, Marvin Hunter, said Thursday he was disappointed in the racial breakdown but was still confident jurors could reach the “right decision.”

“The defense has skillfully done what they set out to do . . . I would have liked to have seen more African-Americans. But I believe the citizenry of the County of Cook can bring out a fair decision in this instance because the facts are there …,” Hunter said. “I believe that any jury, no matter what race they are, can bring out the right decision.”

Video by Ashlee Rezin

In all, eight women and four men make up the jury. There are four white women, three white men, three Latina females, the African-American woman and an Asian man. Opening statements are set to begin the trial Monday, whether the jury box is empty or not.

Conventional wisdom around the courthouse at 26th Street and California is that police officers charged with crimes fare better in bench trials: rules on police use of deadly force are easier to explain to a judge, and many judges are former prosecutors who have worked closely with cops. But that logic might be turned on its head by the notoriety of the McDonald shooting.

Alan Tuerkheimer, an attorney and jury consultant at Chicago-based Trial Methods, said Van Dyke’s lawyers will likely be thinking about their defense and whether the jurors they’ve met can be fair and require prosecutors to prove Van Dyke guilty beyond a reasonable doubt.

“They spent a good chunk of the week with them,” Tuerkheimer said. “They’re in a great position to say, ‘Hey, I’m gonna take my chances.’”

Despite what appears to be damning evidence from a dashboard camera video of the 2014 shooting that shows Van Dyke firing 16 shots into McDonald as the teen appears to walk away from Van Dyke and his partner, a jury offers the defense 12 chances to deadlock, and a sympathetic dozen might acquit Van Dyke entirely, said veteran defense lawyer Steve Greenberg.

While a judge is more likely to convict Van Dyke of a lesser charge than first-degree murder, a jury might be more likely to acquit him entirely.

“The thing for the defense with a jury is, you don’t try to make Van Dyke look like a hero,” Greenberg said. “You try to tell them what he saw in that moment, and what his training was.”

Veteran defense lawyer Michael Ettinger said the trial should be moved out of Cook County to prevent jurors from being intimidated by protesters into convicting Van Dyke.

“They’re human,” Ettinger said. “They get intimidated. It’s a hard enough job sitting on a jury like this.”

Still, he agreed that “one strong juror” can lead to a hung jury. He made note of the CPD applicant that made the final cut.

Ettinger said hypothetically, “she convicts him. Now she’s going to be a police officer?”