The lawyer for Chicago Police Officer Jason Van Dyke raised some eyebrows in the courtroom on Wednesday when he compared the plight of his client — who is charged with fatally shooting a black teenager, Laquan McDonald — to a decades-old Supreme Court case regarding the confessions of three black sharecroppers who were tortured by white police officers.
The defendants in the 1936 Brown v. Mississippi decision were accused of killing a white farmer, and were lashed with belts, beaten, and in one case, left to dangle from a tree branch by a noose — startling abuse that led justices to overturn their murder convictions.
The legal question at hand at Wednesday’s hearing at the Leighton Criminal Courthouse, however, was whether or not Van Dyke’s lawyers could force independent journalist Jamie Kalven to divulge a source who told him that video of Van Dyke gunning down McDonald showed the 17-year-old walked away from police, while CPD officials said McDonald was shot while lunging at officers with a knife.
Defense lawyer Daniel Herbert called Kalven an “anti-cop” activist who had gotten a hold of illegally leaked investigation reports, and said police officers had become a “sub-class of citizen.”
“Am I comparing Jason Van Dyke to people who have suffered years and years of slavery? No,” Herbert said. “But from a legal standpoint, it’s exactly the same thing.”
“His confession should not have been used. It’s the same thing legally as those sharecroppers that were tortured.”
Judge Vincent Gaughan seemed unimpressed with the analogy, repeatedly breaking into Herbert’s argument with instructions to focus on Kalven’s status as a reporter and his sources of information.
Herbert’s comparison stems from a ruling Gaughan made months ago — based on a longstanding Supreme Court ruling about subtler forms of coercing statements than, say, being whipped — that prosecutors and investigators can’t use information gleaned from statements Van Dyke gave about the shooting during questioning related to police disciplinary proceedings.
The coercion there, courts have ruled, comes from the fact that an officer might have to admit to a crime — a violation of his Fifth Amendment right against self-incrimination — or lose his job. But Gaughan ruled investigators are allowed to use nearly identical information that came from interviews Van Dyke gave to union officials and detectives.
During the months since Van Dyke was charged in the McDonald killing, Herbert has repeatedly returned to the theme that Van Dyke was the victim of overzealous prosecutors, and on Wednesday, he gave Kalven an outsize role in the police officers’ plight.
Herbert branded Kalven an “anti-police activist,” called his reporting — which has won a prestigious Polk Award and other recognition from local journalism societies — biased and “slanted.” Herbert made similar arguments earlier this year while representing a Chicago cop facing criminal charges for opening fire on a car full of teenagers, casting officer Marco Proano as a “scapegoat” for outrage over police misconduct. Proano was sentenced to five years in federal prison
“This is not unlike, ironically, some of the cases the Invisible Institute champions,” Herbert said, referring to the journalism collective Kalven helped found. “Jason finds himself in a place where his membership in a police department, in this day and age, in this county, has created some type of sub-class of citizen.”
Setting out a timeline, Herbert argued someone inside CPD or the Independent Police Review Authority had leaked information about Van Dyke’s statements to Kalven, and that Kalven and lawyers for McDonald’s family had interviewed eyewitnesses to the shooting, then steered the FBI to those witnesses.
Kalven’s lawyer, Matthew Topic, noted that Kalven has denied Herbert’s allegations. Herbert had said Kalven’s first article on the McDonald shooting — an award-winning story for the online magazine Slate — had information that was taken from Van Dyke’s confidential statements, but Topic pointed out the same information was in a CPD press release issued the day after the shooting.
Topic also disputed Herbert’s interpretation of an email between Kalven and an eyewitness to the McDonald shooting — who police investigators had not interviewed the night of the shooting — claiming it showed Kalven was trying to “shape” the witness’s version of events.
“All it is an email from Kalven to (the witness) that says ‘thanks for correcting my account,’ ” said Topic, who characterized the email as routine fact-checking. “Reporters do that all the time.”
Topic has represented the Sun-Times in Freedom of Information lawsuits.
Gaughan, who has compelled reporters to testify or give over notes in two high-profile trials over the decades — the trial of one of the Brown’s Chicken massacre defendants, and the child porn trial of R&B star R. Kelly — set the next hearing date for Dec. 13, though it was not clear if the judge intended to rule then.