Special prosecutor, AG Kwame Raoul discuss challenging Jason Van Dyke sentence
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Special Prosecutor Joseph McMahon on Monday had a conference call with Attorney General Kwame Raoul to discuss a potential legal challenge to the six-year, nine-month prison sentence handed down to former Chicago police Officer Jason Van Dyke.
The 45-minute conference call with the prosecution team, Raoul and his staff was a “step in the process” in a possible bid to try to overturn the 81-month sentence handed by Cook County Judge Vincent Gaughan, but McMahon’s spokesman did not say whether any decision was reached.
“This is part of the process to decide whether to go forward with a challenge to the sentence,” Christopher Nelson said.
McMahon has said he plans to decide by March 1 on whether to petition the state Supreme Court to file a writ of mandamus, which is an order that would send the case back to Gaughan for a new, likely longer, prison sentence.
Civil rights activists and Laquan McDonald’s family have called for a harsher sentence for Van Dyke, who was convicted in the teen’s death in early October. Van Dyke could be released in fewer than four years with credit for good behavior. Raoul, a former state senator from Chicago who was sworn in days before the sentencing hearing, had said his office was reviewing whether state law mandated a stiffer sentence for Van Dyke.
Nelson said McMahon, who is the state’s attorney for Kane County, had called for Monday’s conference call.
Gaughan sentenced Van Dyke solely on a single count of second-degree murder, reasoning that it was a more serious charge than any of the 16 counts of aggravated battery with a firearm that Van Dyke was also convicted of.
Each count of aggravated battery carried a sentence of six to 30 years in prison, while the range of sentences for second-degree murder is four to 20 years. Offenders also have to serve at least 85 percent of an aggravated battery with a firearm sentence before they can be paroled, while second-degree murder sentences are eligible for “day-for-day good time” that can cut the actual time served in half.
Sentencing offenders for the most serious charge they face, and not on lesser charges, is standard, but legal experts have said that case law clearly lays out that aggravated battery is the more serious count. If Gaughan re-sentenced Van Dyke to the minimum, six-year sentence for aggravated battery with a firearm, the 85-percent minimum would mean he would spend at least about five years in prison.
Both the attorney general or the prosecutor who handled a case would have legal standing to challenge a sentence if they can argue it violates the laws governing mandatory minimums, though such challenges are rare, and seldom happen without cooperation between the AG and prosecution team.
Raoul’s office already has received thousands of pages of trial records, Nelson said.