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Van Dyke’s sentence challenged by attorney general, special prosecutor

Illinois Attorney General Kwame Raoul

Illinois Attorney General Kwame Raoul | Sun-Times file photo

Nearly a month after a Cook County judge sent Jason Van Dyke to prison for killing 17-year-old Laquan McDonald, it turns out the legal battle over the former cop’s fate may not be over.

Attorney General Kwame Raoul and Special Prosecutor Joseph McMahon filed a petition with the Illinois Supreme Court on Monday seeking a new sentencing hearing in the criminal case that has already roiled Chicago for years. Last month, Cook County Judge Vincent Gaughan gave Van Dyke 81 months behind bars.

Now, Raoul and McMahon are challenging the way Gaughan sentenced Van Dyke. A jury in October found Van Dyke guilty of second-degree murder and 16 counts of aggravated battery with a firearm. However, Gaughan chose to sentence Van Dyke only on the second-degree murder count, finding it to be the more serious crime.

That decision meant Van Dyke could serve only about half the sentence under good-time provisions — and potentially leave prison after a little more than three years. Raoul and McMahon contend Van Dyke should have been sentenced for aggravated battery, meaning he would have been forced to serve at least 85 percent of his sentence.

Raoul and McMahon also said the judge should have sentenced Van Dyke on each of the 16 aggravated battery counts. That’s an argument that threatens to boost Van Dyke’s potential prison stretch to a virtual life sentence.

Still, the issues at play in Van Dyke’s sentencing hearing were complicated enough that the legal community couldn’t come to a consensus on how it should play out. And Monday, it wasn’t clear if the Supreme Court would even choose to get involved.

READ MORE: Our guide to the Laquan McDonald shooting and related trials

Meanwhile, a second front in this battle opened late last week when Van Dyke’s lawyers filed a notice of appeal in anticipation of Monday’s petition.

“The issues in sentencing on this case are very complex,” veteran defense attorney Terry Ekl said. “And there’s no simple solution to it.”

That’s part of the problem, according to Van Dyke appellate lawyer Jennifer Blagg.She called Monday’s move by Raoul and McMahon “extraordinary” and “purely political.” And she said their petition — known as a writ of mandamus — is meant for clear-cut violations of law by a sentencing judge.

“This case has always been about politics,” Blagg said. “And it continues to be about political decisions.”

Veteran defense lawyer Stephen Richards had a different take. Not only does he expect the case to wind up back in Gaughan’s courtroom, he said Monday’s petition forced Van Dyke’s legal team into an appeal — setting up another scenario in which Van Dyke’s sentence could grow.

“Why would a defense attorney risk having his client get more time if, by doing nothing, his client has a sentence that he can live with?” Richards said.

There are also signs of weariness on both sides. Blagg told reporters it is Van Dyke’s “strong wish not to go through another trial.” 

And McMahon told reporters that McDonald’s mother, Tina Hunter, “would like the process to be over, whatever the outcome.”

But McDonald’s family still appears to support the decision to challenge the sentence. The teen’s great-uncle, the Rev. Marvin Hunter, told the Sun-Times that his family lobbied McMahon to make the move. Reached by phone, he said he believes Van Dyke will get a longer sentence if the Supreme Court sends the case back to Gaughan.

 Hunter said of the judge, “I believe that he will do the right thing. He will have to.”

“For him not to straighten this out, at this point, would reflect poorly on the entire criminal justice system,” Hunter said.