Judge rules Jason Van Dyke can keep cop lawyer Dan Herbert

The police officer charged with the murder of Laquan McDonald can keep lawyer Dan Herbert on his case, even though Herbert had represented cops who witnessed the shooting when they were interviewed by the Independent Police Review Authority.

Judge Vincent Gaughan on Thursday ruled Herbert’s work with the police union after the 2014 shooting did not mean Herbert couldn’t still represent CPD officer Jason Van Dyke.

Assistant Special Prosecutor Marilyn Hite Ross argued that those officers would be key witnesses when Van Dyke goes to trial, and since Herbert had represented the officers when they were interviewed by IPRA the day after the shooting, it created a conflict of interest. The access to the witnesses could give Herbert an advantage, and if they change their statements on the witness stand, Hite Ross said, Herbert could be called as a witness.

“The matters in which Mr. Herbert represented these officers are the same matters which resulted in the indictment being filed against (Van Dyke),” Hite Ross said. “That potentially allowed (Herbert) to gain an advantage and to know more about the state’s witnesses than (prosecutors).”

Gaughan said he was not concerned about witnesses changing their testimony and noted that co-counsel Steven “Randy” Rueckert had been hired to deal with any parts of the case that would pose a conflict of interest for Herbert. Herbert remained silent beside Van Dyke for most of a previous hearing, as Rueckert questioned four officers whom Herbert had represented during their IPRA interviews. All four said they waived their attorney-client privilege to allow Herbert to stay on as Van Dyke’s attorney.

A former cop himself, Herbert has long been the go-to lawyer for CPD officers facing misconduct charges, having served several years as general counsel for the Fraternal Order of Police Lodge 7 and then as the union’s top outside lawyer — a job he held until a messy split with the union after the FOP leadership changed in 2014.