Lawyers, activists agree: Jason Van Dyke guilty verdict no sure thing

Over the past few years, activist Kofi Ademola has been at demonstrations in Chicago almost weekly.

In the past couple of weeks, he’s taken to the streets to protest a not-guilty verdict against the Minnesota police officer who killed Philando Castile during a traffic stop. He was expected to speak Friday at another event focusing on the hung jury in the trial of a Cincinnati police officer who shot a black man.

Ademola is pleased murder charges have been filed in Chicago’s high-profile police shooting, the 2014 killing of Laquan McDonald by Officer Jason Van Dyke.

But based on the outcomes in similar cases — including another in Milwaukee — the verdict in the Van Dyke trial could be reason for yet another protest.

“We’d like to think that it’s objective, that it’s about facts or evidence or who argued the case the best, made the best argument with the most compelling evidence, but we know that’s not the case,” Ademola said. “It’s no kind of surprise if (there’s an acquittal), but that does not take away the righteous, rage. . . .

“Laquan, Philando and all the other names I (could) mention have showed us that.”

Local lawyers and other experts agree: Jason Van Dyke has a winnable case, despite what appears to be damning video evidence showing him firing 16 shots into the 17-year-old McDonald as the teen walked away from police.

“I’ve seen the video 100 times like everybody else, and I admit, it looks bad for Jason Van Dyke,” said attorney Terry Ekl.

“But I would like to see the video slowed down for one thing, in fairness to police officers. They have to make split-second, life-or-death decisions,” added Ekl, who represented the family of Emmanuel Lopez, fatally shot by Chicago police in 2005, as well as police officers accused of excessive force.

As Van Dyke’s attorneys argued last month in an unsuccessful attempt to have murder and aggravated battery charges against him dropped, the law allows police officers to use deadly force in a variety of situations.

In Milwaukee last week, jurors found Dominique Heaggan-Brown, who has since been fired from his job as a cop, not guilty of first-degree reckless homicide when he shot 23-year-old Sylville Smith last year. Smith had a gun when he ran, and the jury ultimately apparently decided that he posed a threat when Heaggan-Brown fired the shot that killed him. Both Heaggan-Brown and Smith are black.

Van Dyke’s lawyers have argued that a grand jury wasn’t instructed on those laws before charging Van Dyke — but a judge, or members of a jury if Van Dyke opts for a jury trial, would know the rules well by the time the defense rests its case.

Anticipating possible lines of argument, Ekl suggested video filmed from almost directly behind McDonald wasn’t the same perspective Van Dyke had when he rolled up to the Southwest Side intersection where McDonald was killed.

“The case law is very clear; it says you have to base those decisions from the officer’s perspective, at night on the street . . . not at your office, at your desk,” Ekl said.

Provided

Officers’ perceptions in the moment are critical to the defense, said Philip Stinson, a Bowling Green State University criminologist who has tracked cases where police officers were charged with murder or manslaughter in an on-duty shooting. If an officer feels his life was in danger, Supreme Court rulings have provided that juries must consider the use of force from “the perspective of a reasonable officer on the scene.”

It appears in recent verdicts that juries are sympathetic to that argument, Stinson said. In 63 cases where police officers have been tried on murder or manslaughter charges connected to an on-duty shooting, 34 have been acquitted and 29 convicted, according to Stinson’s research. Six officers have had bench trials — in which a judge, not a jury, renders the verdict — and all have been acquitted, but juries have handed out 18 not-guilty verdicts, Stinson said.

“As soon as the jurors hear an officer say they shot to ‘stop the threat’ and that’s the only reason why they (fired), and they cry on the stand, that carries a lot of weight,” Stinson said. “They just say ‘I’m just not going to second-guess the decision of an on-duty police officer in a split-second, life-or-death situation.’”

At a hearing in May, Van Dyke’s lawyer, Daniel Herbert, argued that by the time Van Dyke arrived at the scene, McDonald already had slashed at a police SUV with a knife and was acting “incredibly abnormally.”

“Jason Van Dyke did not have that luxury” of looking at the situation in hindsight, Herbert said. “By the time his partner pulls up the car and (Van Dyke) pops out, he’s right in the middle of it.”

Sheila Bedi, an attorney at the MacArthur Justice Center who filed a class-action lawsuit against the Chicago Police Department on behalf of activists and victims of excessive force, said the difficulty in prosecuting police officers, and the prosecutions themselves, belie a larger problem:

Police officers too often are trained to use deadly force with too little provocation; they are less likely to be trained in how to reduce the heat of potentially violent encounters.

Bedi hopes her lawsuit will lead to court-ordered change of the whole Chicago Police Department. Suing individual officers may punish them but won’t necessarily change the system, she said.

“Police can justify the shooting of innocent people often by using what amounts to boilerplate jargon in their reports,” Bedi said. “The thing we’re seeing happen over and over again is there are these systemic failures, and individual officers are being held to account, and that’s not what the (criminal justice) system was intended to do.”