Cop cover-up trial Day Two: Police witness said she cursed over McDonald report

7:51 Trial ends for the day

The trial is set to resume at 11 a.m. Thursday.

7:03 p.m. Defense attorney breaks down Fontaine’s alleged comment

While continuing to cross-examine Officer Dora Fontaine, defense attorney James McKay began to break down the comment his client, Detective David March, allegedly attributed to her.

That comment, in a a police report, indicated Laquan McDonald ignored police commands and raised his right arm toward Officer Jason Van Dyke “as if attacking” Van Dyke on Oct. 20, 2014.

First, McKay asked Fontaine about the claim that McDonald “ignored” police commands.

“He ignored the police commands to drop the knife, correct?” McKay asked.

Fontaine acknowledged that was true. But she said she never said that to March.

Then, McKay asked her about the claim that McDonald “raised” his right arm. Fontaine has repeatedly said McDonald “swayed” the knife before he was fatally shot by Van Dyke. So in court Wednesday, McKay held a pen in his right hand, and he raised it to roughly waist level. Then he swayed it back and forth.

“He was swaying it,” Fontaine said. “Not raising it as if attacking.”

Later, Fontaine said, “you’re right, there’s little things like this that people interpret different.”

McKay agreed the whole case revolves around “human interpretations of somebody’s else’s writings, right?”

“Yes,” Fontaine said. “But I did not say that.”

6:25 p.m. ‘You need this job as a police officer, don’t you?’

Defense attorney James McKay tore into Officer Dora Fontaine during a brutal cross-examination Wednesday.

And McKay, the attorney for Det. David March, drilled right down to what believes is the motive behind her crucial testimony for the prosecution.

“You need this job as a police officer, don’t you?” McKay said.

“It’s a nice job and I like it,” Fontaine replied.

Fontaine makes about $90,000 a year, McKay noted. And besides that, he said the Chicago Police Department “has great benefits … the medical benefits for you and your family are outstanding, aren’t they?”

“Yes,” Fontaine said.

Earlier, Fontaine admitted that she had told Special Prosecutor Patricia Brown Holmes and her team that she believed she would be stripped of her police powers over the McDonald shooting along with other officers. But that didn’t happen. And on the witness stand Wednesday, she said she doesn’t know why.

McKay clearly thought he knew. He pointed out she has a house in Beverly and another in Michigan. And she has two children.

“Before you became a police officer, you were a cashier at Popeye’s,” McKay said. “And then you were a loan officer at a student loan association.” McKay noted she made about $32,000 in the latter job.

McKay asked her: “What kind of job would you get at your age, with your skill set if you got fired from the Chicago Police Department?”

Fontaine told him, “I’m not done. I can go back to school and I can get another degree . . . I do feel I have skills, and I have an education.”

6:02 p.m. Key cop witness: ‘I started cursing . . . I said, ‘What the f—?’

Officer Dora Fontaine said she let three words fly — at least — when she saw the comments attributed to her in a police report by Det. David March about the fatal shooting of Laquan McDonald.

She saw them when a colleague sent her a text message with a link to an article that contained the alleged statement.

“I started cursing,” Fontaine testified. “I said, ‘What the f—?’”

She was upset, she said, because she hadn’t said what was attributed to her in the report.

Then, she said, she called her lawyer.

“I needed her advice,” Fontaine said.

Why did it matter, Special Prosecutor Patricia Brown Holmes asked her.

“Because it was a lie,” Fontaine said.

She never said she saw McDonald raise his arm in a threatening way to Chicago Police Officer Jason Van Dyke, as the report stated.

As her testimony continued, Fontaine also said she’s been called by officers in the department a “traitor,” “a rat” and a “snitch” and she was told some officers wouldn’t back her up on the street.

She is on desk duty currently.

5:53 p.m. Fontaine denies she told March that McDonald raised his knife

Officer Dora Fontaine saw the fatal shooting of Laquan McDonald on Oct. 20, 2014.

But that seemed to be news to Detective David March that night.

That’s according to the testimony given Wednesday by Fontaine at the conspiracy trial revolving around McDonald’s shooting. She said she was sitting in her police vehicle preparing reports at the scene when March came over to ask for a case number. When she told him she had seen the shooting, she said he seemed surprised. And he said he needed to speak to her outside the car. So she followed.

“He just asked me what did I see,” Fontaine said. “Male black walking southbound, swaying the knife, twisting, falling.”

When they were done, she got back in the car, and she said March had a conversation with her partner.

However, reports that followed the incident didn’t match what she told him, she said. She testified Wednesday that she doesn’t know why Officers Jason Van Dyke and his partner, Joseph Walsh, wound up listed as victims in the reports.

And when asked about comments attributed to her in the reports — including a claim that McDonald raised his arm “as if attacking” Van Dyke — she denied that she made such a claim.

5:14 p.m. Fontaine says she never saw McDonald make aggressive move before he was shot

Chicago Police Dora Fontaine testified Wednesday she never saw Laquan McDonald lunge, charge or make any aggressive moves before he was shot by police.

Fontaine is a key prosecution witness in the case and has been granted use immunity in the conspiracy trial, which she was also given in Jason Van Dyke’s murder trial.

James McKay, the defense attorney for David March, spent a great deal of time criticizing her in his opening statement, calling her a liar who changed her story to save her job.

Before she was called to the stand, McKay asked the judge for a sidebar in her chambers, which is unusual since it was the judge alone hearing the case, not a jury. The judge agreed to the request, but shortly after, the lawyers returned and proceedings continued in public with Fontaine taking the stand.

In early testimony, Fontaine described the scene that night. She testified that she saw McDonald swaying a knife and heard him being told to “drop the knife” but didn’t see him move aggressively.

Fontaine was among four officers Supt. Eddie Johnson moved to discipline — rather than fire — in 2016 for alleged misconduct connected to the McDonald shooting. In reports, she was to have alleged that McDonald raised his arm toward Van Dyke “as if attacking” Van Dyke.

4:57 p.m. McElligott says no one told him to make McDonald’s shooting seem justified

Defense attorneys for the three men on trial in the conspiracy trial revolving around the death of Laquan McDonald peppered Officer Joseph McElligott with questions about his confrontation with McDonald, as well as the ensuing investigation.

Thomas Gaffney served as McElligott’s partner the night of the Oct. 20, 2014, shooting. Gaffney’s attorney, Will Fahy, tried to drill down into his earlier testimony that his partner had been protected from McDonald by their police car.

“You’re certainly not trying to suggest that Laquan McDonald’s actions didn’t cause Officer Gaffney to be in fear of battery, are you?” Fahy asked.

A successful objection scuttled the question, but McElligott did eventually agree with Fahy that McDonald could have been classified that night as an “armed assailant.”

Joseph Walsh served as Officer Jason Van Dyke’s partner that night. Walsh’s lawyer, Todd Pugh, asked McElligott about McDonald’s eyes. McElligott said McDonald appeared to be high — and he said that made McDonald seem less menacing.

“I felt as though he was not coherent enough to hurt me,” McElligott said.

While being questioned by James McKay, attorney for David March, McElligott said he and Gaffney had been separated for interviews after the shooting.

“David March was not a part of any discussion about whether you were to be a victim of an aggravated assault or not a victim?” McKay asked.

“I don’t know where he was,” McElligott answered.

Later, McKay asked McElligott to confirm that no one ever instructed him to make McDonald’s fatal shooting by Van Dyke look like it was justified.

“Nobody,” McElligott said.

4:05 p.m. McElligott says he would have shot McDonald if Gaffney’s life had been in danger

As his former partner looked on Wednesday, Chicago Police Officer Joseph McElligott repeated his earlier testimony that he felt Thomas Gaffney was protected by their Chevy Tahoe when Laquan McDonald swung a knife toward him on Oct. 20, 2014.

That seemed to undermine part of Gaffney’s defense in the conspiracy trial now underway. Gaffney’s lawyer, William Fahy, said Tuesday that Gaffney thought about using deadly force to stop McDonald before McDonald even crossed paths with Officer Jason Van Dyke. However, that claim also seems to be contradicted by Gaffney’s testimony to a federal grand jury.

During Van Dyke’s trial, McElligott said he “felt like my partner was protected for the most part.”

On Wednesday, Assistant Special Prosecutor Ron Safer asked McElligott about the moment in which McDonald swung his knife toward Gaffney, into the windshield of their Chevy Tahoe where Gaffney was sitting. Safer asked McElligott if he thought McDonald was about to batter Gaffney. McElligott hesitated as he gave his answers.

“I felt that he was protected,” McElligott said. “My partner was protected by the car and the window did not shatter, so in my eyes it was, I mean, he was still a potential threat to hurt us, but he was protected for the most part.”

Safer asked if McElligott thought McDonald had used force likely to cause death or great bodily harm.

“If he had broken the window it would have been different,” McElligott said. “But I felt he used force but it was our car, so, we continued to monitor his actions.”

When Safer asked the question about force again, McElligott said, “not toward me he did not.”

When Safer asked if McDonald had used that kind of force on anyone, McElligott said, “I don’t know.”

Finally, as the testimony went on, Safer asked McElligott if he would have shot McDonald if McDonald had put Gaffney’s life in danger.

McElligott said he would have.

Sitting in the well of the courtroom, Gaffney shook his head.

3:41 p.m. McElligott, key witness in Van Dyke trial, takes stand in conspiracy case

Chicago Police Officer Joseph McElligott, who worked as Thomas Gaffney’s partner the night Laquan McDonald was fatally shot, has taken the stand in the conspiracy trial revolving around McDonald’s death.

McElligott was the first witness to take the stand in the earlier trial of Chicago Police Officer Jason Van Dyke. He told jurors then about his encounter with McDonald — moments before Van Dyke shot McDonald — in which he followed McDonald on foot while Gaffney followed in their Chevy Tahoe.

“He didn’t make any direct movement at me,” McElligott said of McDonald during Van Dyke’s trial. “And I felt like my partner was protected for the most part.”

Now McElligott is testifying in the trial of Gaffney, David March and Joseph Walsh, who was Van Dyke’s partner that night. When McElligott took the stand Wednesday, he began to tell the same story he told several weeks ago. He said that, when he and Gaffney found McDonald, he told McDonald to “show me your hands.” He said McDonald then took his hands out of his pockets.

“He held the knife out in his right hand,” McElligott said.

He also said Gaffney told him he’d call for a Taser.

2:05 p.m. Break in the trial

The trial is on a lunch break until 3:05 p.m.

2:01 p.m. Defense attorney tries to pin crimes on Laquan McDonald

Defense attorney James McKay zeroed in on Illinois’ law on deadly force — and similar rules of the Chicago Police Department — when he had his turn to question Sgt. Larry Snelling.

Snelling has testified for hours so far in the conspiracy trial of three Chicago Police officers revolving around the Oct. 20, 2014, shooting death of Laquan McDonald.

McKay, representing David March, asked Snelling whether he considered a knife a deadly weapon.

“Yes,” Snelling said, “a knife can be a deadly weapon depending on how a person uses it.”

McKay also asked Snelling about McDonald’s alleged attack on a truck driver before police arrived, and he asked about McDonald’s attempt to swing a knife toward Officer Thomas Gaffney while Gaffney was in a police vehicle.

“Rudy Barrillas is a victim of at least an aggravated assault, and Tom Gaffney is the victim of at least an aggravated assault,” McKay said.

Snelling said, “based on that information, yes.”

Then McKay asked about the claim that McDonald was trying to steal radios from trucks in a truck yard, and whether burglary counts as a forcible felony. State law allows officers to use deadly force if it is “necessary to prevent the arrest from being defeated by resistance or escape” and if the person trying to escape “has committed or attempted a forcible felony which involves the infliction or threatened infliction of great bodily harm.”

Snelling agreed that burglary is a forcible felony.

“So, if I’m breaking into trucks stealing radios, I’m committing burglary to an auto,” McKay said.

Snelling agreed.

“But also other felonies,” McKay said. “Like aggravated assault to a police officer . . . like attempted murder of a citizen.”

Snelling agreed.

1:09 p.m. ‘The dark side of the moon’

The video of Laquan McDonald’s shooting played again Wednesday afternoon as the attorney for Jason Van Dyke’s partner asked a Chicago police sergeant what he could — and could not — see on screen.

Tom Breen, the attorney for Joseph Walsh, asked Sgt. Larry Snelling about the moment just before Van Dyke opened fire on McDonald on Oct. 20, 2014.

“Is he not taking that knife in his right hand, and is he not turning toward the officers?” Breen asked.

“I can’t see that in the video,” Snelling said.

That’s when Breen labeled the actions not caught on video “the dark side of the moon.”

“The two officers that got out of the squad car,” Breen said, referring to Walsh and Van Dyke, “they would be able to see what I referred to as ‘the dark side of the moon’?”

Snelling told him, “obviously, on scene, there’s always a greater perspective.”

“The video has some disabilities, doesn’t it?” Breen asked.

Snelling agreed.

12:44 p.m. Gaffney’s attorney sets out to justify handling of McDonald — and paperwork

The defense attorney for Thomas Gaffney set out Wednesday to justify his client’s handling of Laquan McDonald the night the teenager was killed — as well as the paperwork Gaffney filled out after he crossed McDonald’s path.

Gaffney, now on trial for an alleged conspiracy to protect Officer Jason Van Dyke after Van Dyke fatally shot McDonald on Oct. 20, 2014, was one of the first officers to encounter McDonald that night. He and his partner, Joseph McElligott, followed McDonald along 40th. McElligott got out of their vehicle while Gaffney followed from inside the vehicle.

Defense attorney William Fahy asked Chicago Police Sgt. Larry Snelling about Gaffney’s actions after Snelling testified about use-of-force policies at CPD. Fahy told Snelling how Gaffney tried to use the vehicle to block McDonald’s path as McDonald left an industrial area and neared a Burger King where civilians were more likely to be present. He told the sergeant about how McDonald popped the tire in the police vehicle and how McDonald raised his knife toward Gaffney while Gaffney was in the vehicle. He also noted that Gaffney called for a Taser.

Snelling said he thought officers were, at that point, handling McDonald appropriately.

“Using time, distance and calling for additional resources was an effective way of handling the job,” Snelling said.

Snelling also said Gaffney could have considered McDonald as an assailant even if Gaffney had the protection of the police vehicle.

In another key line of questioning, Snelling also acknowledged that, when the situation ended, it was appropriate for Gaffney to fill out an “Officer Battery Report.” He said that, despite its name, the form was used for other situations beside batteries. He said the form is no longer in use.

12:17 p.m. Shooting video enters the trial as use-of-force testimony continues

The infamous video of Laquan McDonald’s fatal shooting entered the conspiracy trial revolving around his death as a Chicago police sergeant testified Wednesday about the use of deadly force.

Assistant Special Prosecutor Ron Safer played portions of that video for Sgt. Larry Snelling after he asked Snelling about the use-of-force model used by the CPD. Snelling watched the video and said he would have classified McDonald as “an armed, active resister.”

Earlier, Snelling said deadly force is only appropriate against a subject likely to cause death or serious physical injury.

Safer allowed the video to play through most of the shooting.

Snelling said officers consider three factors when deciding whether they are being confronted with a deadly threat: the weapon, the delivery system and the intent.

“When you look at this video,” he said, “you see the weapon, you see the delivery.”

However, he said, the “intent” remained questionable.

Snelling said officers may use time and “shielding” to avoid a possible deadly threat if there is no immediate need to stop such a subject. Watching the video, Snelling said Jason Van Dyke and partner Joseph Walsh could have stepped behind their vehicle when they crossed paths with McDonald.

Finally, Snelling said the whole situation would have been “significantly” different if McDonald had a gun.

11:57 a.m. Use-of-force paperwork at issue as trial resumes

The conspiracy trial of three Chicago Police Officers accused of covering up for Jason Van Dyke after the fatal shooting of Laquan McDonald resumed Wednesday with testimony about use-of-force policies at the Chicago Police Department.

Such testimony usually revolves around when officers should — or should not — use deadly force in the field. But the testimony on Wednesday also focused on a key part of the conspiracy trial — paperwork.

Joseph Walsh, David March and Thomas Gaffney are accused of crafting a narrative in police reports designed to protect Van Dyke from the repercussions of the McDonald shooting.

Assistant Special Prosecutor Ron Safer asked Sgt. Larry Snelling about the Tactical Response Report filled out by officers when they need to describe the actions of a subject they’ve encountered. Snelling said its purpose is to “accurately document the officer’s response to a subject’s actions.”

Snelling also went over with Safer the use-of-force model used by CPD. Snelling said the model moves from uncooperative subjects to passive resistors to active resistors to people who use deadly force against an officer.

“Is the use of deadly force by an officer appropriate only against an assailant who is likely to cause death or serious physical injury to another person?” Safer asked.

“Yes,” Snelling said.

Earlier:

The second day of the trial against three Chicago police officers is scheduled to start about 11 a.m. Wednesday at the Leighton Criminal Court Building.

On trial are ex-Det. David March, former Chicago Police Officer Joseph Walsh and Thomas Gaffney, the only defendant who is still on the force.

They are accused of lying on police reports to cover up the slaying of Laquan McDonald, who was shot 16 times by Chicago Police Officer Jason Van Dyke in 2014. The three men are also accused of being part of a wider conspiracy to cover-up the shooting. Van Dyke was convicted last month of second-degree murder and 16 counts of aggravated battery — one for each time he shot McDonald.

Here are three things to watch for as the trial unfolds:

1. Officer Dora Fontaine’s testimony

A key prosecution witness, Chicago Police Officer Dora Fontaine, may testify as early as today. She’s expected to say that March attributed false information to her in a police report — that she saw Laquan McDonald threaten to attack officers. And when she tried to correct the record, she was branded “a rat” and told she wouldn’t be safe working as a cop on the streets, according to the opening statement on Tuesday by Special Prosecutor Patricia Brown Holmes. Expect March’s attorney, James McKay, to vigorously cross-examine Fontaine. He’s already dubbed her “a liar” who has changed her story to save her job.

2. Hard cross-examinations

Expect more police records to come into evidence and more vigorous cross-examination over the smallest details on which the case hinges. A Cook County medical examiner’s investigator on Tuesday testified that March called him to report the shooting of McDonald in 2014 and at one point said that the teen lunged at officers. During his cross-examination March’s attorney repeatedly suggested that it wasn’t even March who called the medical examiner’s office and suggested the investigator got the word “lunge” from hearing it on the television news that night from a police union spokesman who was at the scene. The word lunge is critical since the now infamous dashcam video of the shooting shows no such action by McDonald before he was shot.

3. Broader picture for CPD

In the coming days prosecutors will introduce evidence to show that there was a conspiracy to cover up the shooting that extends even beyond the three officers on trial, with an emphasis on emails between supervisors. The conspiracy charge appears to be the most challenging part of their case to prove, but it also presents the most serious implications for the Chicago Police Department as a whole.

The case is expected to stretch into next week, since there will be no trial held Friday or Monday, over scheduling issues. Cook County Judge Domenica Stephenson is hearing the case alone, not a jury, so she will decide the men’s fates.

TRIAL COVERAGE:

• Key cop witness endures rough cross, stands firm about ‘lie’ in McDonald report
• Battles over police paperwork and a single verb: The cop cover-up trial begins
• 3 cops accused in cover-up case head to trial
• A look at the key players in the trial
• Judge denies motion to dismiss cover-up case