Jason Van Dyke lawyers will argue to overturn conviction in Laquan McDonald case

Lawyers for Jason Van Dyke have raised a number of reasons why a judge should throw out the landmark murder verdict against the veteran police officer, and they will make their case Friday morning.

Judge Vincent Gaughan, who presided over the case from 2016 through Van Dyke’s three-week jury trial this fall, is considered unlikely to toss the guilty verdicts on second-degree murder and 16 counts of aggravated battery after listening to oral arguments from Van Dyke’s defense team and Special Prosecutor Joseph McMahon. The motions, seeking both a new trial, and outright acquittal, are standard steps after a conviction, but almost always wind up as steps on the way to filing an appeal. Gaughan is likely to rule against the motions and set a date for sentencing.

Here’s a look at the arguments Van Dyke’s attorneys have raised in multiple motions filed following the October guilty verdict.

Van Dyke was not guilty because shooting Laquan McDonald was legally justified.

Van Dyke’s lawyers made similar arguments at trial, and state law is very favorable to police officers who use deadly force against armed suspects. But that force has to be reasonable, said Stephen Richards, a veteran attorney who represented Brown’s Chicken Massacre defendant Juan Luna during a trial in front of Judge Gaughan.

“I think the jury came to a common-sense finding that yes, (Van Dyke) could use deadly force; he used too much deadly force, which equals second-degree murder,” Richards said.

The trial should have been moved out of Cook County.

As he did in numerous motions ahead of the trial, Van Dyke again cites research by an expert hired by his defense that found three-quarters of Cook County residents surveyed thought Van Dyke was guilty, and more than half believed he was “definitely guilty.”

The matter was extensively litigated before the trial, and Richards thinks the argument is going nowhere after the verdict. Courts make it hard to win a change of venue, and Gaughan ordered extensive screening of jurors.

Gaughan didn’t rule on whether to move the trial until too late.

Gaughan said he would hold off on his ruling on moving the trial until after all the jurors and alternates had been picked and were sworn in, meaning Van Dyke had to decide whether to go with a bench trial or a jury. Van Dyke argues that this put them at a disadvantage in deciding their trial strategy. This also is likely a non-starter, Richards said, noting that Gaughan’s maneuver is common.

“(Van Dyke) had a chance to go with a bench trial after he saw the jury. He didn’t,” Richards said.

Two jurors lied about their criminal records on jury forms

Van Dyke’s lawyers identify two jurors who had criminal records they didn’t disclose in responses to the lengthy jury questionnaire they filled out before being questioned in-person during jury selection. One juror had a 2016 conviction for possession of marijuana and drug paraphernalia. Another juror had a 2017 DUI conviction, as a 1995 drug conviction, and has a son with multiple arrests and a son in-law serving prison time in Texas.

Richards said this could be problematic, if jurors were asked during in-person questioning about their criminal history or their relatives’ experience with law enforcement. Cook County’s standard juror questionnaire, however, typically is not considered a statement made under oath, and the form’s question on criminal history is so badly worded, Richards said, judges routinely re-ask the question during oral questioning, using layman’s terms.

“Usually, if you have a problem you straighten it out under oral questioning, which is under oath,” Richards said. “The question is, what did the questionnaire say and did attorneys or Gaughan go over it with them in oral questioning?”

Jury instructions suggested by the defense were not used

Jury instructions, which law out the legal standards for a finding of guilty for a given charge, usually are boilerplate from a template. Van Dyke’s lawyers asked for several “non-pattern” instructions that spelled out case law that was favorable to Van Dyke’s case.

“Non-pattern instructions are almost never allowed. I always ask for them and seldom get them,” Richards said. “The courts are just very hostile to non-pattern instructions.”