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Van Dyke Trial Day 8: Defense persuades judge to toss testimony, video from FBI

Chicago Police Officer Joseph Walsh leaves the Leighton Criminal Courthouse after testifying in the murder trial of his former partner, Jason Van Dyke. | Ashlee Rezin/Sun-Times file photo

3:31 p.m. Testimony ends for the day

3:27 p.m. Defense convinces judge to toss testimony, video from FBI expert

Defense attorney Dan Herbert struck a blow to the prosecution Tuesday afternoon when he persuaded Cook County Judge Vincent Gaughan to strike the testimony of FBI expert Mark Messick. The judge told the jury to “totally disregard” Messick’s testimony, including the enhanced video of Laquan McDonald’s shooting death and the gunshots it appeared to depict.

“This is not his area of expertise,” Gaughan said, referring to the gunshots.

After prosecutors played the enhanced videos with Messick on the stand, Herbert began to question him and zeroed in on his lack of ballistics expertise. Specifically, Herbert asked whether Messick could say definitively, that the green arrows in the video depicted bullets entering McDonald’s body.

“There’s no way I could prove that 100 percent,” Messick admitted.

Prosecutors tried to salvage Messick’s testimony, prompting him to say the arrows depict “puffs of smoke.” But Herbert pushed further, asking him whether the puffs of smoke meant the bullets missed McDonald and hit the pavement. Messick gave varying answers, at one point saying, “it didn’t seem that way to me.”

Herbert pushed further as Gaughan joined in the questioning. But the judge eventually cut Herbert off and made his ruling.

2:45 p.m. FBI expert offers enhanced versions of infamous dashcam video

Additional versions of the infamous dashcam video of Laquan McDonald’s shooting death were played for jurors Tuesday afternoon as Chicago Police Officer Jason Van Dyke’s murder trial continued.

The videos were prepared by Mark Messick, a member of the FBI’s audio, video and image analysis unit in Quantico, Virginia. He took the stand following a recess in the trial.

In the first video, an oval appeared around McDonald moments before he was shot. Within the oval, the image was enhanced. Then, green arrows pointed to the moments in which Messick believed McDonald was struck by Van Dyke’s gunfire.

Messick said he determined when McDonald was struck by working with the ballistics section of the FBI and watching the video back and forth, frame by frame, over and over again. He said he probably watched the video a “couple hundred times.”

Next, jurors watched the same video in slow motion. Messick also added a time counter to the bottom of the videos.

1:56 p.m. Jurors see the gun — ‘Did you pull the slide back on that, detective?’

Jurors have now seen the duty weapon Chicago Police Officer Jason Van Dyke carried Oct. 20, 2014, the night he shot Laquan McDonald.

The gun was identified by Detective Roberto Garcia, who described it as a 9 mm semi-automatic Smith & Wesson. When asked how many rounds it holds, he said it holds 15 plus one in the chamber — for a total of 16.

When Assistant Special Prosecutor Marilyn Hite Ross handed Garcia the weapon, she first asked him to make sure the weapon was unloaded.

“It’s unloaded, it’s clear,” Garcia said.

But Cook County Judge Vincent Gaughan, a veteran, interjected: “Did you pull the slide back on that detective?”

Garcia pulled it back and said, “yes.”

1:42 p.m. Jurors see photographs of Laquan McDonald’s clothing

As Chicago police evidence technician Kamal Judeh continued his testimony Tuesday afternoon, prosecutors showed jurors photographs of Laquan McDonald’s clothing.

They saw photographs of his blue jeans, a pair of boxer shorts, a black hoodie with a Nike logo on it, and a dark jacket with letters on it.

Judeh also identified the knife McDonald was carrying the night he was shot, Oct. 20, 2014.

1:28 p.m. Evidence technician identifies 16 bullet casings

Chicago Police evidence technician Kamal Judeh identified 16 spent bullet casings he said he collected at the scene of Laquan McDonald’s shooting on Oct. 20, 2014.

Jurors also saw a photograph he took of McDonald’s blood in the middle of the street.

The bullet casings Judeh identified were contained inside sealed envelopes handed to him in the courtroom by a prosecutor. He did not open the envelopes or remove the bullet casings — defense attorneys did not dispute they were collected from the 4100 block of Pulaski that night.

Judeh, the first person to take the stand following a lunch break in the trial, took several photos at the scene. His pictures captured markers documenting the location of the 16 spent bullet casings as well as the damage done by McDonald to the vehicle used by Officers Joseph McElligott and Thomas Gaffney. McDonald used a knife to stab the vehicle’s tire and slash its windshield.

12:20 p.m. Officer says McDonald was ‘gasping for air and gurgling’

A Cook County Sheriff’s police officer described how Laquan McDonald gasped for air in his final moments after McDonald was shot by Chicago Police Officer Jason Van Dyke.

The officer, Adam Murphy, was among the additional police witnesses jurors heard from before Van Dyke’s trial took a lunch break at 12:18 p.m. The trial will resume at 1 p.m.

Cook County Sheriff’s Officer Adam Murphy testifies Tuesday during the trial for the shooting death of Laquan McDonald at the Leighton Criminal Court Building. | Antonio Perez/Chicago Tribune pool
Cook County Sheriff’s Officer Adam Murphy testifies Tuesday during the trial for the shooting death of Laquan McDonald at the Leighton Criminal Court Building. | Antonio Perez/Chicago Tribune pool

Murphy said he saw a group of Chicago police vehicles speeding north on Cicero that night as he sat in his vehicle at Archer. He said he followed and, when he got to the scene, he tried to give first aid to McDonald. He said he told him the ambulance was on the way and, “I hear it in the distance.”

“He was gasping for air and gurgling,” Murphy said.

Jurors also heard from Chicago Police Officer David Ivankovich and viewed dashcam video from the police vehicle he was riding in on Oct. 20, 2014.

Ivankovich said he had a Taser, and he responded with his partner to the call for help from Officers Joseph McElligott and Thomas Gaffney. He said they learned on the way to the scene that shots had been fired.

11:42 a.m. Witness describes the shooting: It ‘looked like he was trying to get away’

Xavier Torres, a witness to Laquan McDonald’s fatal shooting, took the stand late Tuesday morning.

Torres, 26, said he and his father were on their way to a North Side hospital where a relative worked. They traveled north on Pulaski and wound up pulling over just south of the Dunkin’ Donuts at the scene of the shooting.

Xavier Torres testifies from the witness stand during the trial for the shooting death of Laquan McDonald at the Leighton Criminal Court Building on Tuesday. Torres said he heard gunshots and saw Laquan McDonald fall to the street, followed by a pause and
Xavier Torres testifies from the witness stand during the trial for the shooting death of Laquan McDonald at the Leighton Criminal Court Building on Tuesday. Torres said he heard gunshots and saw Laquan McDonald fall to the street, followed by a pause and more shots. | Antonio Perez/Chicago Tribune pool photo

Torres said McDonald was walking toward a nearby fence when he first heard gunshots. He said, “I didn’t know exactly how many shots,” adding, “I just know I heard multiple.” He said he saw McDonald drop to the ground, and he said he heard more gunshots after McDonald fell than before.

Under questioning by Assistant Special Prosecutor Daniel Weiler, Torres said he never saw McDonald make any threatening movements toward police. He said it “looked like he was trying to get away from the officers.”

When cross-examined by defense attorney Randy Rueckert, Torres acknowledged he didn’t see the knife in McDonald’s hand.

11:22 a.m. Van Dyke’s partner demonstrates McDonald’s movements before the shooting

The officer who partnered with Jason Van Dyke the night Laquan McDonald was shot ended his testimony Tuesday after demonstrating for jurors what McDonald did before Van Dyke opened fire.

Joseph Walsh left the witness box for the demonstration while under cross-examination by defense attorney Randy Rueckert. Walsh walked away from Rueckert but turned slightly toward the jury as he showed them how McDonald rounded his shoulder before the shooting.

Walsh said McDonald was about 12 feet away from him. The jurors all looked at Walsh squarely.

“He gets more aggressive while he’s on that diagonal line,” Walsh said. “He turned and looked in our direction . . . with a stare and a focus beyond us, like that. That is when I believe the first shot occurred when he turned his right shoulder.”

10:56 a.m. Van Dyke’s partner said he could have fired on McDonald

Assistant Special Prosecutor Joseph Cullen challenged Joseph Walsh on his decision not to fire on Laquan McDonald on Oct. 20, 2014. Walsh was Jason Van Dyke’s partner that night.

Cullen asked Walsh if he fired his weapon while McDonald was on the ground.

Walsh said no.

The prosecutor asked whether he was in a position to fire.

“I could have,” Walsh said, adding that he chose not to pull the trigger.

Then the prosecutor asked if McDonald was still a threat on the ground. Walsh said he was — still armed with the knife and moving.

10:47 a.m. Van Dyke’s partner said he flinched as gunfire began

Jason Van Dyke’s partner continued his testimony Tuesday morning by telling jurors he flinched when he heard the first gunshot fired at Laquan McDonald on Oct. 20, 2014.

Joseph Walsh said McDonald stood parallel to Van Dyke that night, raising his right arm with a knife in his hand up to shoulder level, and then rounded his right shoulder toward the officers.

Walsh also told a prosecutor how long he and Van Dyke had been out of their squad car before Van Dyke first began fire. Walsh said, “maybe 10 seconds, 15 seconds.”

Assistant Special Prosecutor Joseph Cullen asked if it could have been six seconds.

“Maybe,” Walsh replied.

Walsh previously said in police reports that he told McDonald to “Drop the knife!” multiple times. He alleged that McDonald swung his knife in an aggressive manner. And he said that after McDonald fell to the ground and Van Dyke continued firing, McDonald kept moving, attempting to get up and still armed with the knife.

10:21 a.m. Van Dyke’s partner thought McDonald was heading into Burger King, Dunkin’ Donuts

Joseph Walsh, Jason Van Dyke’s partner the night Van Dyke fatally shot Laquan McDonald, testified Tuesday that he believed McDonald was heading into a Burger King on Pulaski.

“I reasonably believed he was going to enter into that Burger King,” Walsh said. “He was armed with a knife. I did not want him to make entry into that Burger King that had people in there.”

He said when McDonald passed the Burger King, he “reasonably believed” McDonald was headed for a Dunkin’ Donuts.

Van Dyke’s lawyer, Dan Herbert, said in opening statements Monday that Walsh would have shot at McDonald if Van Dyke hadn’t been in the line of fire.

10:04 a.m. Van Dyke’s partner called to the stand

On the second day of testimony in Chicago Police Officer Jason Van Dyke’s trial, prosecutors called as their first witness Joseph Walsh, who was Van Dyke’s partner the night Laquan McDonald was fatally shot.

Walsh is one of three current or former police officers charged with conspiracy, obstruction of justice and official misconduct. Video and audio feeds of Walsh’s testimony were not available in an overflow courtroom. Walsh is believed to have asked the judge not to have his testimony televised, an option the judge was allowing.

Earlier, Judge Vincent Gaughan polled the jurors to find out if anyone had talked to them about the case. One said her brother-in-law did, but she told him to stop. She said she wasn’t swayed by his comments.

“Tell your brother-in-law if he talks to you again, I’m going to put him in jail,” Gaughan said.

7:15 a.m. Prosecution continues to build its case against Van Dyke

The prosecution is expected Tuesday to continue calling more witnesses as it builds its case against Chicago Police Officer Jason Van Dyke, charged with the murder of 17-year-old Laquan McDonald.

The trial will start Tuesday a bit later, at 10 a.m.

Typically, in most criminal cases, witness lists are made public, and the prosecution and the defense often give the media a sense of what witnesses are up next.

Video by Ashlee Rezin

But Cook Count Judge Vincent Gaughan has shrouded the case in secrecy. Even routine matters are held in his chambers, away from public view.

So it’s unclear exactly what to expect from prosecutors Tuesday. At some point during their case, they will likely call more police officers who were at the scene of the October 2014 shooting of McDonald, and put one or more experts on the stand to testify whether Van Dyke’s use of force in the situation was appropriate.

Here’s a video recap of Monday’s testimony from Sun-Times columnists Mark Brown and Mary Mitchell:

Video by Ashlee Rezin