No federal charges against Jason Van Dyke, U.S. Attorney John Lausch announces

Former Chicago Police Officer Jason Van Dyke will not face federal charges for the murder of 17-year-old Laquan McDonald, the city’s top federal prosecutor confirmed Monday in an unusual announcement that seemed to take members of McDonald’s family by surprise.

U.S. Attorney John Lausch said his office would have had a “very high bar” to clear, and a second trial could “diminish the important results already achieved.” That, in part, is why Van Dyke will not be prosecuted at the Dirksen Federal Courthouse for a crime that roiled Chicago, sparked historic reforms and led to a contentious state-court trial back in 2018.

That would also seem to close the book on any further courtroom battle over McDonald’s October 2014 shooting death. His family reached a settlement with the city back in 2015 that would preclude civil litigation. Van Dyke abandoned his appeal and is already out of prison.

Still, McDonald’s aunt and grandmother pushed back against Lausch’s claim Monday that “the family was in agreement not to pursue a second prosecution.” McDonald’s aunt, Tanisha Hunter, learned the news from a Chicago Sun-Times reporter and she denied that she, McDonald’s mother or his grandmother had been in touch with Lausch’s office.

“We were not aware of any of that. I just talked to my sister, and she didn’t say anything about it,” Tanisha Hunter said in a phone interview. “I’m upset. That’s all I can say. How could they say that? We’re the ones who should make that decision, not someone else. We’re talking about his momma, his grandma. That’s crazy.”

McDonald’s grandmother, Tracey Hunter, said she was not aware of her daughter talking to federal investigators recently and she said she believed her daughter would have wanted Van Dyke to face federal charges.

“If the feds asked her, she didn’t tell me,” Tracey Hunter said Monday.

Tina Hunter, McDonald’s mother, could not be reached for comment. Nor could the Rev. Marvin Hunter, McDonald’s uncle, who has publicly opposed charging Van Dyke in federal court. Jeffrey Neslund, an attorney who has represented McDonald’s mother, said he was unaware of investigators speaking with her.

Neslund said federal authorities who worked the case once seemed confident Van Dyke would face federal charges.

Van Dyke left prison in February after serving more than three years of an 81-month sentence stemming from his state-court conviction for second-degree murder and 16 counts of aggravated battery — one for each bullet he fired at McDonald on Oct. 20, 2014.

Van Dyke’s release renewed calls for a federal prosecution, though. A group of activists calling themselves the “Laquan Nine” were arrested Feb. 3 and ordered to stay away from the Dirksen courthouse after they allegedly refused repeated requests to leave the Loop building while protesting there.

Tracey Hunter was initially detained with the group but was released.

Still, it seemed their calls would be answered by little more than silence. It is highly unusual for federal prosecutors to release a statement like they did Monday, publicly commenting on an investigation that does not result in criminal charges.

That said, Chicago’s U.S. attorney’s office previously acknowledged a joint federal and state investigation into the McDonald shooting. That was in 2015, when the office was led by Zachary Fardon.

The statement released Monday read as a follow-up to the comments in 2015. It cited Van Dyke’s state-court prosecution, his prison sentence, the fact that he “no longer is and never again will be a police officer,” as well as the consent decree now governing the Chicago Police Department that was prompted by McDonald’s death.

Lausch said prosecutors would have faced a higher burden in federal court than was cleared by their counterparts in state court, who persuaded a jury to find Van Dyke guilty only of second-degree murder.

In federal court, prosecutors would have to “prove not only that Mr. Van Dyke acted with the deliberate and specific intent to do something the law forbids, but also that his actions were not the result of mistake, fear, negligence or bad judgment,” Lausch’s statement said. “It requires federal prosecutors to prove beyond a reasonable doubt what Mr. Van Dyke was thinking when he used deadly force, and that he knew such force was excessive.”

Eric Sussman, a partner at Barnes & Thornburg who previously served as deputy chief of the financial crimes and special prosecutions unit in Chicago’s U.S. attorney’s office, underscored the state-court jury’s findings in an interview with the Sun-Times.

“A jury looked at it and they did make a decision that it wasn’t first-degree murder,” Sussman said. “That’s pretty significant here.”

That jury, he said, apparently decided that Van Dyke “did not go there with a deliberate intent to kill Laquan McDonald.”

The U.S. attorney’s statement

U.S. Attorney’s Office Provides Update on Investigation Into the Murder of Laquan McDonald

CHICAGO — On April 13, 2015, the U.S. Attorney’s Office for the Northern District of Illinois announced a joint federal and state investigation into the October 20, 2014, fatal shooting of Laquan McDonald. On Nov. 24, 2015, the Office announced that the investigation remained active and ongoing. The Office conducted a thorough and independent investigation with the assistance of its federal, state, and local investigative partners, including the Cook County State’s Attorney’s Office, Federal Bureau of Investigation, and the Chicago Independent Police Review Authority and its successor, the Civilian Office of Police Accountability.

In November 2015, the Cook County State’s Attorney’s Office, in consultation with the U.S. Attorney’s Office, proceeded with murder charges against former Chicago Police Officer Jason Van Dyke in the Circuit Court of Cook County. Experienced and independent prosecutors led the state prosecution, resulting in Mr. Van Dyke’s historic convictions of second-degree murder and sixteen counts of aggravated battery with a firearm. On January 18, 2019, Mr. Van Dyke was sentenced to 81-months’ imprisonment.

Today, John R. Lausch, Jr., United States Attorney for the Northern District of Illinois, announced that the U.S. Attorney’s Office will not pursue a successive prosecution of Mr. Van Dyke on federal criminal charges. The decision not to pursue a federal prosecution is consistent with Department of Justice policy and was made in consultation with Mr. McDonald’s family. U.S. Attorney Lausch has spoken with a representative of Mr. McDonald’s family on multiple occasions over the past three years, including recently, to discuss the factors the Department of Justice considers when deciding to bring a second prosecution. The family was in agreement not to pursue a second prosecution, and the Office respects their position.

While much of the evidence presented at Mr. Van Dyke’s state trial was developed through a joint federal and state investigation, a federal trial would not be a retrial of the state case. There is no general murder charge under federal law that would apply. Federal prosecutors would need to prove to a jury beyond a reasonable doubt that Mr. Van Dyke willfully deprived Mr. McDonald of a constitutional right. To do that, prosecutors would have to prove not only that Mr. Van Dyke acted with the deliberate and specific intent to do something the law forbids, but also that his actions were not the result of mistake, fear, negligence, or bad judgment. It requires federal prosecutors to prove beyond a reasonable doubt what Mr. Van Dyke was thinking when he used deadly force, and that he knew such force was excessive. The federal law presents a very high bar – more stringent than the state charges on which Mr. Van Dyke was convicted.

Even if a federal trial resulted in a conviction, the federal judge imposing sentence would be obligated to consider the 81-month state sentence previously imposed, as well as other relevant factors, including the same aggravating and mitigating factors presented at Mr. Van Dyke’s extensive state-court sentencing hearing; the fact that Mr. Van Dyke served his state prison sentence with conduct entitling him under state law to be released early; and the fact that Mr. Van Dyke no longer is and never again will be a police officer. Given these factors, there is a significant prospect that a second prosecution would diminish the important results already achieved.

In addition to the conviction and imprisonment of Mr. Van Dyke, the murder sparked an extensive Department of Justice investigation of the Chicago Police Department, the results of which were largely incorporated into a federal consent decree requiring the Chicago Police Department to implement hundreds of meaningful police reform measures.

The public should not draw conclusions regarding how the Office is likely in the future to analyze incidents of alleged crimes by law enforcement officers. The Department of Justice remains committed to investigating allegations of excessive force by law enforcement officers and will continue to devote the resources required to ensure that credible allegations of civil rights violations are thoroughly examined.