Prosecutors balk at defense’s proposed jury instructions in Van Dyke trial

When jurors make their decision on whether to convict Jason Van Dyke in the murder of Laquan McDonald, Van Dyke’s lawyers want them told they can’t use “the vision of 20/20 hindsight.”

As the Van Dyke trial continues in Judge Vincent Gaughan’s courtroom, the more arcane but critical battle over the instructions that the judge will give the jury before they decide the case continues behind the scenes.

Special Prosecutor Joseph McMahon late Tuesday filed a motion challenging four instructions proposed by Van Dyke’s team as “complicated, lengthy and unabashedly argumentative.”

Gaughan won’t approve a final draft of jury instructions, which typically are based on boilerplate “pattern” legalese approved by the state Supreme Court, until after the defense closes its case.

The four suggested instructions tell the jurors:

• They need to consider “specific acts” McDonald committed to resist arrest before he was shot
• If Van Dyke’s decision to use deadly force against McDonald was justified, then he was not required by law to use “non-deadly alternatives first”
• That when a person is in reasonable fear for their life, that person isn’t required by the law to “use infallible judgement” when deciding if deadly force is justified — and that “the passage of a few seconds during which the fear abates is normally not enough to hold that person guilty of an unjustified homicide”
• Police officers often are forced to make split-second judgments about what’s reasonable, rather than with “the 20/20 vision of hindsight.”

McMahon argues that each instruction fleshes out — in a way that’s inappropriately favorable to Van Dyke’s self-defense argument— the state law that already gives police officers wide latitude to use deadly force when they are in fear for their life of the lives of others. A prosecution use-of-force expert who testified last week told jurors that Van Dyke’s decision to shoot McDonald was unjustified.

Discussions of the jury instructions have taken place so far in closed-door hearings. The instructions are the only guidance on the law jurors will have as they weigh evidence in the case.