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Judge quashes Jason Van Dyke’s first bid for new trial, sets sentencing date

Jason Van Dyke

Jason Van Dyke | Rock Island County Sheriff's office

Jason Van Dyke will find out next month how much more time he spends behind bars.

Van Dyke returned to the Leighton Criminal Court Building on Friday wearing a hangdog expression, a patchy beard and a baggy blue jacket over his yellow jail jumpsuit. He spent around three hours in the courtroom as his lawyer argued motions to overturn his guilty verdict on charges of second-degree murder and 16 counts of aggravated battery in the 2014 shooting of 17-year-old Laquan McDonald.

Judge Vincent Gaughan swiftly ruled against each issue raised by the defense — a largely expected outcome, since trial judges seldom rule that they made critical errors. He then set a Jan. 18 sentencing date.

Van Dyke has been lodged in a jail three hours west of Chicago in Rock Island, Ill., since shortly after his trial. He spent a few minutes with his wife and parents after the hearing and took Communion from his parish priest, lawyer Dan Herbert told reporters.

Herbert said he will argue for the shortest possible punishment for Van Dyke at his upcoming hearing, and offered that Van Dyke could be eligible for a probation-only sentence if Gaughan sentences the 40-year-old officer on only the second-degree murder count.

“We’re hoping for the absolute minimum,” Herbert said.

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  • State law does allow probation as punishment for second-degree murder, but if Gaughan opts for prison time, the sentence can range from four to 20 years. Each count of aggravated battery can carry a sentence between six to 30 years, and it is not clear whether Gaughan is obliged under the law to sentence Van Dyke on each count, back-to-back — making the minimum sentence 96 years— or if they merge into a single count.

    As he left the courthouse, Special Prosecutor Joseph McMahon declined to say how long he thinks Van Dyke is due to serve.

    “There is some debate on that,” McMahon said. “Those are all legal issues that we’ll resolve in our brief, and certainly in court in January.”

    The courtroom debate on Friday outlined arguments that Van Dyke’s lawyers will use as the basis for his appeals, which typically are filed only after the judge hands down his sentence.

    Attorney Jennifer Blagg, who has represented numerous clients in wrongful conviction cases, sat in the courtroom gallery. Blagg and attorney Darren O’Brien, whose client, Chicago Police officer Dante Servin, was acquitted of reckless homicide charges in a controversial bench trial in 2015, have been mentioned as Van Dyke’s appeals team. Herbert, who has split with leadership of the Fraternal Order of Police over his handling of the case, said he would work with whoever winds up handling Van Dyke’s appeals.

    “It’s Jason’s decision, and from what I understand, I don’t know if he’s fully made his decision,” Herbert said. “Whatever appellate lawyers he chooses, I am willing to work with whoever he is comfortable with.”

    Herbert said the arguments raised Friday would form the basis for Van Dyke’s appeals. Herbert filed a string of five post-trial motions, seeking a new trial or outright acquittal. Many issues Herbert raised already had been litigated extensively ahead of trial, including the notion that pre-trial publicity made it impossible for Van Dyke to get a fair trial from a Cook County jury.

    Friday, Herbert argued that the defense was forced to allow jurors to be seated who said they felt the McDonald shooting was “horrible” and Van Dyke fired “too many shots.” From the detailed questionnaires filled out before selection started, defense attorneys said they knew other jurors in the pool harbored even stronger feelings.

    “Jurors saying ‘horrible,’ ‘shot too many times,’ that is nothing compared to the jurors set to take their positions,” Herbert said. “We were forced to pick a jury that was not fair and impartial.”

    Jurors found Van Dyke not-guilty to a single count of official misconduct, which Herbert argued showed that jurors were not properly instructed on the laws dealing with police use of force. He also speculated that a question from jurors during deliberations implied some jurors were considering whether some of the shots Van Dyke fired were justified.

    Community activist and aldermanic candidate Will Calloway on Friday said he wanted to see Van Dyke get a lengthy sentence next month: “a minimum 996 years.”

    “We look forward to packing out the courtroom,” Calloway said. “I believe in mercy. .. I pray for Jason. I pray for his soul and his salvation, but that’s something he has to work out with his God.”