Feds were investigating Jason Van Dyke in 2014. Why didn’t they charge him?

On the day of his release from prison for the murder of Laquan McDonald, activists are calling for federal charges that could send Jason Van Dyke back to prison.

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Jason Van Dyke listens as Special Prosecutor Joseph McMahon questions a witnesses during a hearing in 2017. Van Dyke is set to be released Feb. 3 after serving more than three years in prison for the 2014 murder of Laquan McDonald.

Nancy Stone/Chicago Tribune file photo

Former Chicago Police officer Jason Van Dyke is set to return from prison Thursday as protesters rally downtown to call for federal charges that could send him back behind bars.

Experts say that any federal charges in the death of 17-year-old Laquan McDonald are unlikely at this point, but for months after the 2014 shooting, federal investigators were leading the probe of Van Dyke. If charges are a long shot now, what happened to the investigation more than seven years ago?

“That is the great question that has never been answered,” said Jeffrey Neslund, the lawyer who represented McDonald’s family in litigation against the city that ended with a $5 million settlement.

“What were the feds waiting for?”

Neslund said that he and McDonald’s family met then-U.S. Attorney Zach Fardon in person to discuss the case not long after the shooting. In the months that followed, he spoke often to FBI agents who promised they were building a case that would hold Van Dyke and the Chicago Police Department to account for McDonald’s death.

“We were given assurances that this wasn’t going to be like Michael Brown in Ferguson,” Neslund said, referring to the 2014 fatal shooting of a teenager by a police officer in the St. Louis suburbs, in which both local and federal prosecutors declined to bring charges against the officer.

Witnesses Neslund interviewed for the civil lawsuit also testified before a federal grand jury. When Neslund and co-counsel Michael Robbins unearthed a copy of police dashcam video of the shooting in the spring of 2015, city attorneys clearly assumed that federal investigators had leaked it to the family. More than a year after the shooting, as the deadline neared for the city to release explosive video of the shooting, there was no word from Fardon’s office.

On the night before Thanksgiving in 2015, city officials announced the video would be released at 5 p.m. Charges against Van Dyke were announced that afternoon—by Cook County State’s Attorney Anita Alvarez.

At the news conference announcing murder charges against Van Dyke, Alvarez said she hadn’t acted sooner because her office had been working the case alongside federal investigators.

“While we would have preferred for the investigation to run its full course and allow our federal partners to complete their evaluation in its entirety, I felt compelled in the interest of public safety to announce these state charges today,” she said in 2015. Her federal partners, Alvarez said then, were not ready to announce charges.

A special prosecutor would take over the Van Dyke case after Alvarez lost her bid for reelection. Another special prosecutor, Patricia Brown Holmes, was appointed to investigate how CPD handled the investigation of the shooting. Holmes’ team of private attorneys charged Van Dyke’s partner, the lead detective on the case and a third officer with trying to cover up the shooting.

All three officers were acquitted, with Judge Domenica Stephenson issuing a ruling that blasted the prosecution case. In the federal system, a jury trial would have been almost certain, and former federal prosecutor Ronald Safer thinks his case would fare better with jurors than with a judge in Cook County’s Leighton Criminal Court Building.

“There are very very few judges in that building who will convict a police officer of anything,” Safer said.

Former federal prosecutor Jeffrey Cramer, who was lead prosecutor in the federal case against former CPD commander Jon Burge, said politics might have stalled out the federal investigation.

Alvarez, facing a tough reelection fight, likely felt she had to charge Van Dyke as soon as the video was released, even if the U.S. Attorney opted to wait. That move would have slowed federal prosecutors, and the delay was likely crucial.

When Donald Trump was elected president in 2016, the Department of Justice was quickly out of the business of probing civil rights violations by police, said Cramer, who now is senior managing director at Guidepost Solutions, an international investigations firm.

“The Civil Rights office of the DOJ, for the four years of the Trump administration, they basically didn’t even have the lights on.”

Even with a new attorney general, Merrick Garland, Cramer said it would be unlikely that federal charges will be filed against Van Dyke after he already has served out his sentence. The rare instances where federal authorities file charges after a failed prosecution or a light sentence in state court have come soon after a verdict or sentence is announced.

“They have to do something because they have to respond to all the clamor and outcry, and you’re going to see this AG and this Civil Rights division take a look,” Cramer said. “They may not do anything, but they are going to look at it with a new set of eyes.”

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