Dashboard camera footage of Jason Van Dyke firing 16 shots at Laquan McDonald went a long way toward convincing a jury last fall that the 2014 shooting was an act of murder. But the same video did not convince a Cook County judge that three of Van Dyke’s fellow officers were part of a cover-up that began after the shooting.
In a point-by-point takedown, Judge Domenica Stephenson on Thursday acquitted Detective David March and Officers Joseph Walsh and Thomas Gaffney on counts of conspiracy, obstruction of justice and official misconduct — a stunning blow to the prosecution that came the day before Van Dyke was to be sentenced for McDonald’s murder.
RELATED: Read the full decision here
Reading from a 28-page written order, Stephenson dissected the case built by Special Prosecutor Patricia Brown Holmes, tearing down the testimony of key state witnesses and largely agreeing with the defense’s argument that the officers at the scene saw the shooting from a different angle than the single dashcam.
“It is not as simple as looking at the reports in comparison to what is depicted on the video,” the judge said. “It has been established that the recovered videos do not show the vantage point of Van Dyke, Walsh, or others who were either facing or to the side of McDonald.”
Stephenson called into question the credibility of a key prosecution witness, Officer Dora Fontaine, noting she “tried to minimize” McDonald’s behavior while she was on the stand but later admitted she told the FBI, the state’s attorney and the inspector general that McDonald was moving closer to police, waving or “swaying” the knife, and making “attacking movements.”
A critical dispute between the prosecution and defense was whether McDonald was a dangerous teen who presented a real threat to police or in the end, a victim. Stephenson made it clear where she landed, saying it was “undisputed and undeniable” that McDonald was an armed offender who continued to walk toward more populous areas the night he was shot. Officers could justifiably believe McDonald was a dangerous, knife-wielding assailant.
“Only the officers involved in the incident know what their belief was at the time of the attack,” she said. “We cannot not now view the actions of the officers with the benefit of hindsight as to what they should have believed.”
Prosecutors repeatedly compared what was in police reports to what the police dashcam video showed. But Stephenson said the case wasn’t as simple as that. The judge noted that two people can view the same event and describe it differently, but that doesn’t mean either is lying. Minor errors in reports are not crimes, the judge said.
As Stephenson paged through her order, McDonald’s great uncle, Rev. Marvin Hunter, frowned from his seat in the last row of the courtroom gallery. As Stephenson stepped away after announcing her conclusion, the baritone voice of Walsh’s lawyer, veteran defense attorney Thomas Breen, could be heard over the chatter from a packed courtroom gallery that held dozens of police officers, union officials and other supporters.
“Good day, your honor,” he said.
Gaffney to return to force
Gaffney’s reinstatement to the Police Department was “imminent,” police spokesman Anthony Guglielmi said Thursday evening. Gaffney had been suspended after the indictment was announced in July 2017 but will be reassigned to “operational duties”— meaning he will not be on desk duty.
Walsh and March retired from the department in 2016 after the city Inspector General said the pair should be fired for their roles in the investigation.
In the courthouse lobby, Walsh faced a crowd of reporters and said the nearly two years since his indictment had been “heart-wrenching, heartbreaking for my family.” His lawyer, Todd Pugh, praised Stephenson for her “courage and integrity.”
“The judge listened to the evidence in the case … and she concluded that there never was a case here,” said Pugh, who condemned reporters for news coverage of the case.
‘This is not justice’
Rev. Hunter, on the other hand, told reporters the not guilty verdict would send a message to officers that they could “cheat, rob and steal” without punishment.
“To say these men are not guilty is to say Jason Van Dyke is not guilty,” Hunter said. “This is not justice.”
The case marked the first time Chicago police officers had stood trial on charges related to the “code of silence,” an unofficial system of covering up for fellow officers’ misconduct that civil rights activists have bemoaned for decades, and which even Mayor Rahm Emanuel conceded existed in a speech not long after video of McDonald’s shooting was released.
Flint Taylor, one of several activists and attorneys who petitioned to have a special prosecutor probe the department’s investigation of the McDonald shooting, said Thursday that he was not surprised by the judge’s decision, but did not consider the failed prosecution a wasted effort.
“Evidence was brought to light in a court of law; people in Chicago and nationally will see what the criminal justice system in Chicago is all about,” Taylor said, noting that the three officers had opted for a bench trial, while Van Dyke was convicted by a jury.
The three officers were charged after a year-long investigation by Holmes and a team that included former federal prosecutor Ronald Safer, who co-wrote a 2014 report on police misconduct that recommended firing officers who lied on police reports.
At issue in the trial were statements the three officers included in their reports that characterized McDonald as moving aggressively toward Van Dyke and Walsh in the seconds before Van Dyke opened fire. Other statements indicated that McDonald tried to get up off the pavement as Van Dyke emptied his magazine at the knife-wielding teen. Prosecutors said that March and the officers at the scene coordinated their stories, discussing the shooting and watching the dashcam video while gathered at Area Central headquarters the night of the shooting.
While only the three were charged, March’s supervisors, Lt. Anthony Wojcik and Sgt. Daniel Gallagher, were named at trial as unindicted co-conspirators. Prosecutors found emails that showed Wojcik and Gallagher early in the investigation had decided to clear Van Dyke in the shooting, with Gallagher writing “we should be applauding [Van Dyke] and not second guessing him.”
Months after the investigation closed, Gallagher emailed Wojcik about a nonprofit group that wanted to help defend Van Dyke against charges, and the president of that organization later emailed Wojcik to ask if he’d “had any luck making the case go away.” Stephenson noted that none of those emails came from any of the three indicted officers, and said the conversations did not prove the existence of a conspiracy.
‘Innocent from day one’
Van Dyke’s sentencing is set for 9 a.m. Friday at the Leighton Criminal Court Building, just upstairs from Stephenson’s courtroom. Activist William Calloway said Thursday he was “devastated” by the outcome of the conspiracy case, but would return to the court house for Van Dyke’s sentencing.
“We’re not gonna protest and take to the streets” Calloway said. “We’re gonna go to the polls.”
March’s lawyer, former prosecutor James McKay, said that the acquittals were a vindication of the three officers.
“This case wasn’t even close, and three innocent men have been put through hell,” he said. “Whatever you think about Jason Van Dyke, these men were innocent from day one.”