Judge denies motion for directed verdict for 3 Chicago cops in cover-up trial

6:39 p.m. Judge denies motion for directed verdict

Despite fierce arguments by the defense, a Cook County judge refused Tuesday to find in favor of three Chicago Police officers charged with lying to help cover up the shooting of Laquan McDonald by fellow officer Jason Van Dyke.

It’s highly unusual for a judge to grant a motion for a directed verdict in a criminal case — and typically both prosecutors and defense in criminal cases go through the motions in their arguments. But the prosecution of these three officers is unprecedented, and defense pushed extremely hard, often with great passion to get the case tossed.

Cook County Judge Domenica Stephenson is hearing the evidence alone in the case against ex-Officer Joseph Walsh, Officer Thomas Gaffney and former Det. David March.

The three men are charged with conspiracy, obstruction of justice and official misconduct..

Defense attorneys argued that the prosecution did not come even close to proving its case against the three men, especially that they intended to commit any of the crimes they are charged with. And they stressed the prosecution never presented any evidence of the three men meeting to conspire to lie.

Assistant Special Prosecutor Ronald Safer argued that police reports in the case showed that the same false story was repeated in the same way to cover up what actually happened at the McDonald shooting.

“There is no innocent explanation,” Safer said.

“When the police distort the truth to protect one of their own, the system fails,” Safer said.

5:50 p.m. ‘There’s no innocent explanation’

A special prosecutor invoked Tuesday the notorious video of Laquan McDonald’s shooting death as he fought back against defense attorneys’ attempts to bring the conspiracy trial of three current or former police officers to an early end.

While the video played a starring role in the earlier trial of Jason Van Dyke, it has rarely been seen in the trial now playing out at the Leighton Criminal Court Building.

Assistant Special Prosecutor Ron Safer said the reports filed by David March, Thomas Gaffney and Joseph Walsh were false “beyond any doubt.” And he said the McDonald shooting video “shows unmistakably” that “there was no attack on these officers.”

“There’s no way based on that video that they can say that they were . . . in danger of a battery,” Safer said. “Laquan McDonald is walking away.”

Safer pressed on, noting the similarities in the reports filed by March, Gaffney and Walsh. He asked Cook County Judge Domenica Stephenson, “how can three people get that identically wrong unless they have agreed to tell the exact same story?”

“That, in and of itself, is proof beyond any doubt that they have gotten together to tell the same story, the same false story,” Safer said. “There’s no innocent explanation.”

5:34 p.m. ‘We’re talking about a mistake’

The fight to bring an early end to the conspiracy trial of three current or former Chicago police officers continued Tuesday evening with arguments from Thomas Gaffney’s defense attorney, who returned to a question he asked in opening statements.

“What is Tom Gaffney doing here?” Will Fahy asked.

Fahy is the third defense attorney to make a forceful argument for a directed finding now that prosecutors have rested their case. Not only are such requests rarely granted, they are often argued half-heartedly. But Tuesday, Fahy and his colleagues have pushed hard to win over Cook County Judge Domenica Stephenson.

Fahy told the judge he remains “really confused” about Gaffney’s role in the conspiracy. His confrontation with Laquan McDonald occurred before Jason Van Dyke arrived on the scene.

“Even if there was a shred of evidence of some type of conspiracy to obstruct, some type of conspiracy to conceal the real facts of what happened when Laquan McDonald was shot, how does Tom Gaffney help?” Fahy said. “He wasn’t a witness to it. He didn’t see it. He wrote no reports pertaining to the shooting of Laquan McDonald.”

The attorney said Gaffney “possibly made one mistake” on the reports that he did file.

Fahy told the judge, “I have yet to meet a perfect police officer. And I have yet to see a perfect police report. But we’re talking about a mistake that Tom made.”

5:02 p.m. ‘We’ve become the prosecutor of Laquan McDonald’

A defense attorney for Joseph Walsh, Jason Van Dyke’s partner the night of the Laquan McDonald shooting, next took his turn Tuesday to argue that Cook County Judge Domenica Stephenson should throw out the case against his client.

Todd Pugh noted that Special Prosecutor Patricia Brown Holmes had accused his client of trying to “shape a narrative” about the McDonald shooting to protect Van Dyke. But Pugh said it was Holmes who, through this trial, is “reshaping the narrative about how a criminal trial is supposed to work.” He said Holmes and her team have basically been trying to prove McDonald not guilty of committing aggravated assault the night he was killed.

And, Pugh said, “we’ve become the prosecutor of Laquan McDonald.”

However, the defense attorney said prosecutors have a burden. He said they must prove that Walsh’s assertion that McDonald committed aggravated assault is not just a mistake — “but that it was intentionally manufactured.”

The special prosecutors, he said, have not “even come close to meeting their burden.”

4:21 p.m. Defense attorneys begin battle to end the trial

The defense attorney for Det. David March kicked off a fiery argument Tuesday afternoon, telling Cook County Judge Domenica Stephenson she “must direct this case out” — and acquit his client — because special prosecutors failed to prove their case.

Defense attorney James McKay hopes the judge will acquit March through a directed finding before the defense even puts on its case. Though rare, it is not beyond the realm of possibility. And when McKay finishes, defense attorneys for Thomas Gaffney and Joseph Walsh are expected to make the same request.

McKay called March an “innocent man.” He said, if March truly wanted to cover for Officer Jason Van Dyke, March could have tossed the infamous Laquan McDonald shooting video “in the middle of Lake Michigan.” McKay described that video Tuesday as the piece of evidence “everybody clings to as the absolute truth.”

March preserved that video and other evidence from the scene of the Oct. 20, 2014 shooting, McKay said. And since then, prosecutors have used that very evidence to put on trial Van Dyke, March, Gaffney and Walsh, McKay noted.

“It is shameful that David March, an innocent man, is sitting here charged with these crimes when he gave all this evidence to these prosecutors,” McKay said.

McKay insisted there is no evidence that March, Gaffney and Walsh — the current and former officers now on trial — “even met each other before that night.” And, he said Officer Dora Fontaine — a key prosecution witness — “lied to you.”

“Dora Fontaine is not a flipper, she’s a flip flopper,” McKay argued, saying she had repeatedly changed her story.

3:44 p.m. Prosecution rests its case

A team of special prosecutors rested their unprecedented case Tuesday afternoon against three current or former Chicago Police officers accused of helping cover up the fatal shooting of Laquan McDonald.

They rested after four days of evidence ranging from dramatic cross-examinations to dry, dragging document reviews. Unlike the trial of Jason Van Dyke, which revolved around a video that rocked Chicago upon its release, the trial of David March, Joseph Walsh and Thomas Gaffney is much more of a “paper case.” Prosecutors claim the men used police reports to craft a false narrative designed to make McDonald’s shooting death appear justified.

The men are charged with conspiracy, obstructing justice and official misconduct.

Before offering evidence on behalf of the accused, defense attorneys will likely ask Cook County Judge Domenica Stephenson to acquit the men with a directed finding. While such a ruling is rare, it is not beyond the realm of possibility. Stephenson will determine the guilt of the three men regardless — there is no jury.

In October, a jury found Van Dyke guilty of second-degree murder and 16 counts of aggravated battery for McDonald’s shooting.

2:37 p.m. ‘Officer did exactly what he was trained to do’

Prosecutors reviewed emails Tuesday afternoon from Sgt. Daniel Gallagher, including one that asked whether a reasonable officer confronted by Laquan McDonald would have taken the same action as Officer Jason Van Dyke.

“The answer is absolutely,” Gallagher allegedly wrote.

Van Dyke has since been convicted of second-degree murder and 16 counts of aggravated battery over McDonald’s shooting death.

Prosecutors reviewed Gallagher’s emails through the testimony of Steve Maris, CPD’s director of information services.

Portions of Gallagher’s email have previously been disclosed. In it, he told Lt. Anthony Wojcik that an officer “can’t over kill a person who is still alive at the hospital.” He also wrote, “officer did exactly what he was trained to do. We should be applauding him not second guessing him.” Finally, he wrote, “offender chose his fate. Possibly suicide by police.”

2:21 p.m. Emails say police were caught off guard by release of McDonald records

Chicago police were apparently caught off guard when City Hall released records late in 2015 about Laquan McDonald’s fatal shooting shortly after the release of video depicting his shooting death.

That’s according to the contents of an email reviewed by Steve Maris, CPD’s director of information services, as he testified Tuesday afternoon at the conspiracy trial of three current or former officers.

In one email sent by Lt. Anthony Wojcik to Sgt. Daniel Gallagher on Dec. 5, 2015, Wojcik wrote, “FYI, sent below so FOP could let officers know.” Below, the email states, “it would be wise to alert all officers concerned for their awareness/safety … the department and the city released the Laquan McDonald investigative file to the public without alerting us, Area Central or without having redacted our or other officers’ names.”

Maris has also testified about emails that passed along news clips about the public release of the video depicting McDonald’s death as well as discrepancies in police reports over what happened when McDonald was killed.

1:51 p.m. CPD’s director of information services takes the stand after further email debate

Steve Maris, director of information services for the Chicago Police Department, took the stand Tuesday afternoon in Chicago’s cop conspiracy trial following more debate over emails that may come up during his testimony.

Despite the earlier ruling by Cook County Judge Domenica Stephenson, another email debate broke out before Maris took the stand. Prosecutors flagged a new set of messages they hoped to use, insisting they planned to offer them only as public or business records.

Defense attorneys complained that the emails were filled with links to media reports. James McKay, attorney for David March, said “we are in a very, very sad state of affairs when it comes to due process” if media reports are considered as evidence.

However, a prosecutor insisted the emails were simply meant to show when video and records of Laquan McDonald’s fatal police shooting were released to the public.

The judge said she would rule on the emails as they come up in testimony.

1:23 p.m. Judge overrules objection to emails as trial resumes

Cook County Judge Domenica Stephenson kicked off the second week of Chicago’s police conspiracy trial Tuesday afternoon by overruling an objection by defense attorneys to a series of emails prosecutors want the judge to consider.

Arguments over the emails stalled the trial of David March, Thomas Gaffney and Joseph Walsh on Thursday afternoon. After taking time to read the emails privately, the judge eventually said she wanted to have more time — until today — to consider them.

Following the judge’s ruling, attorneys continued to quibble over some individual messages.

Defense attorneys had insisted the emails couldn’t be used against their clients, who didn’t send or receive them. But a prosecutor insisted that each officer included false information from the emails in their police reports — such as the number of officers “injured” and other details — and that’s evidence of an agreement to cover for Officer Jason Van Dyke after he fatally shot Laquan McDonald.

That argument appeared to be a preview of an anticipated fight over whether the judge should toss the charges against the three officers at the close of the state’s case, which could come as early as today.

Earlier:

The trial of three Chicago Police officers accused of lying to protect Jason Van Dyke during the investigation of the Laquan McDonald shooting resumes Tuesday, with a key ruling expected from Judge Domenica Stephenson.

When the trial went into recess last week, Stephenson had yet to decide whether Special Prosecutor Patricia Brown Holmes’ team would be allowed to introduce into evidence emails exchanged by higher-ranking officers, not the three defendants, officer Thomas Gaffney, former officer Joseph Walsh and ex-Det. David March.

Holmes had said in pre-trial filings that the prosecution would show a conspiracy among the three officers and numerous others involved in the shooting investigation to cover up for Van Dyke.

The emails could be crucial evidence as special prosecutors seek to prove their case that the officers engaged in a conspiracy to whitewash the McDonald shooting investigation, and a ruling barring them from going into the record would be a strong signal of what Stephenson thinks of the conspiracy case so far against Gaffney, Walsh and March.

The emails, nearly all of which are neither addressed to nor sent by one of the three officers, can only be admitted into evidence if Stephenson rules that the three days of testimony to date have showed there likely was a conspiracy to clear Van Dyke of wrongdoing.

The three officers have opted for a bench trial, so if Stephenson rules that prosecutors haven’t provided enough evidence for her to include the emails, it does not bode well for the odds of her finding the officers guilty of the conspiracy counts they face. The officers also face counts of obstruction of justice and official misconduct.

Holmes said last week that her team had only one more live witness set to testify— a CPD manager who is in charge of the email system — before resting its case. March’s lawyer, James McKay, last week announced a long list of potential witnesses he had subpoenaed.

Among the emails are messages exchanged between Lt. Anthony Wojcik and Sgt. Daniel Gallagher, March’s supervisors who signed off on his reports. Gallagher, according to emails reviewed by prosecutors, wrote a lengthy email to Wojcik two weeks after the shooting and before the CPD investigation had closed, that allegedly mischaracterized key information about the shooting and said that “we should be applauding (Van Dyke) and not second guessing him.”

Months after the investigation closed, both Gallagher and Wojcik received an email from another detective, asking Wojcik and Gallagher provide “items from inside the Chicago Police Department” to a non-profit legal group that was interested in representing Van Dyke against possible criminal charges.

Prosecutors also have alleged Gallagher forwarded emails from his CPD account to his personal account, messages that included information Gallagher had received from the FBI, under the pretext that department still was investigating Van Dyke.