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Van Dyke unlikely to appeal unless 81-month sentence is increased: lawyer

Former Chicago police officer Jason Van Dyke, left, and his attorney Daniel Herbert listen to proceedings during Van Dyke's sentencing hearing at the Leighton Criminal Court Building on Jan. 18. | Getty

The state Supreme Court should not meddle with the seven-year prison sentence Jason Van Dyke received for the murder of Laquan McDonald, unless it wants Van Dyke to launch an appeal that might lead to another trial, lawyers for the former Chicago Police officer said.

Van Dyke’s lawyers on Monday filed a response to the rare, joint challenge to Van Dyke’s 81-month prison term, filed by Special Prosecutor Joseph McMahon and state Attorney General Kwame Raoul. The defense’s 15-page brief points out procedural errors and argues that Judge Vincent Gaughan was acting within the law when he opted to sentence Van Dyke only on a single count of second-degree murder, rather than some or all of the 16 counts of aggravated battery.

If the high court were to get involved in the case now, it would “open a Pandora’s box” of legal issues Van Dyke could raise in an appeal of trial decisions, his conviction and the sentence. But, if the court doesn’t get involved, Van Dyke likely will opt to serve out his time — which could mean fewer than four years behind bars, with credit for good behavior— without filling appeals that could lead to a new trial.

“(Van Dyke’s) current mindset is that he does not want to raise issues on appeal that would result in him being rewarded with a new trial or a new sentencing hearing,” attorneys Jennifer Blagg and Darren O’Brien wrote. “… if his sentence is increased, his mindset would likely change.”

In a petition to the state’s highest court, McMahon and Raoul said that Gaughan should have sentenced Van Dyke on aggravated battery counts that each carry six- to 30-year sentences, and that Van Dyke could have been handed back-to-back sentences on at least some of those counts.

Van Dyke’s wife and attorneys last week said that the veteran officer was beaten by inmates at a federal prison in Danbury, Conn., shortly after he arrived there earlier this month. Van Dyke had been transferred out of the Illinois prison system and sent to the low-security facility out of concern for his safety.