Former Chicago Police Officer Joseph Walsh stood about two feet from the jury box Tuesday, playing the role of Laquan McDonald as Walsh re-enacted the final seconds of the 17-year-old’s life before he was shot.
Walsh volunteered to step off the witness stand during cross-examination by lawyers for his former partner, Jason Van Dyke. He directed Van Dyke’s lawyer, Randy Rueckert, to stand at the back of the well of the courtroom, at about the distance Walsh said he and Van Dyke were from McDonald, seconds before Van Dyke fired 16 shots at the knife-wielding McDonald.
McDonald was getting “more aggressive” as he walked on a diagonal line past — and slightly away — from the two officers, Walsh told the jury.
“His right shoulder and right arm had come up in front of him . . . as he progressed in our direction,” Walsh said, pivoting toward the jury box. “He turned and looked in our direction, with a stare and a focus beyond us, like that.”
Jurors looked at Walsh, their attention rapt.
“That’s when I believe the first shot occurred, when he turned his right shoulder,” Walsh said.
During more than an hour on the stand Tuesday, the second day of testimony in Van Dyke’s trial for McDonald’s murder, Walsh clearly was not willing to second guess his partner. His account also did not differ greatly from one he gave to investigators soon after the shooting, a statement for which he was charged for allegedly trying to cover up for Van Dyke.
Walsh resigned from the force in 2016, after a city Inspector General’s report recommended he and 10 other officers be fired for their roles in the initial investigation which cleared Van Dyke of wrongdoing. Walsh and two other officers were charged with obstruction of justice and conspiracy counts in 2017. Walsh testified Tuesday under a deal for use immunity, meaning none of his testimony can be used for criminal charges.
Walsh’s testimony could be key for both sides. Walsh’s testimony provides the defense’s best chance at undermining the dashcam footage of the shooting that appears to show McDonald walking away from the two officers. Walsh consistently said the video, filmed from behind McDonald, did not show what he and Van Dyke saw.
For the prosecution, the fact that Walsh had nearly the same perspective on McDonald, yet never fired a shot, buttresses their theme that Van Dyke’s use of deadly force was unjustified.
Walsh said Van Dyke was in front of him when Van Dyke fired the first shots at McDonald. Walsh said McDonald, who fell to the ground after being hit with the first shots, was still a threat because he had a knife. Assistant Special Prosecutor Joseph Cullen asked why Walsh didn’t fire on McDonald while the teen was on the ground, even as his partner was firing multiple shots.
“I was convinced that Officer Van Dyke took necessary action to save himself and myself,” Walsh said.
Prosecutors noted Walsh was under indictment but are barred from going into details. But prosecutors did not explore discrepancies between what Walsh testified to and his initial reports on the shooting. They also passed on that opportunity with another cop, Dora Fontaine, who testified Monday.
“It’s definitely strategy,” veteran defense attorney Terry Ekl said. Ekl said prosecutors likely chose not to impeach Fontaine because her testimony on the stand was better for their case.
Fontaine said Monday she didn’t see McDonald make aggressive movements. In police reports from 2014, Fontaine reportedly said that McDonald raised his arm “as if attacking” Van Dyke.
“They’re better off with her trial testimony than they are with the inconsistent statement that’s in the police report,” Ekl said.
Prosecutors may have had a bigger incentive to try to discredit Walsh, though, using his earlier comments in police reports that McDonald “continued moving” after he was shot and tried to get up with his knife.
Walsh testified Tuesday that McDonald remained a threat after he fell to the ground because he was armed with a knife and moving — but never described McDonald as trying to get up.
If Walsh made a statement contradicted by the video, Ekl said, prosecutors could ask jurors in closing arguments, “why should you believe a word out of this guy’s mouth?”
Eric Sussman, the ex-top deputy to Cook County State’s Attorney Kim Foxx, questioned calling Walsh or other officers as prosecution witnesses. Without grants of immunity, none of the officers likely would have testified. If called by defense without immunity, the officers likely would have taken the Fifth.
“You’ve got the video of the officers, and you already know that they are going go be hostile towards the state’s theory of the case,” Sussman said. “I would question whether, from a prosecution perspective, that whatever helpful testimony you’re going to get from these officers is worth giving the defense some very sympathetic witnesses.”