Van Dyke’s lawyers claim misconduct by Anita Alvarez but don’t prevail

Chicago Police officer Jason Van Dyke became the first CPD officer charged with murder for an on-duty shooting only because Cook County State’s Attorney Anita Alvarez was trying to appease her critics during a tough re-election battle, lawyers for Jason Van Dyke argued Wednesday.

But Judge Vincent Gaughan quickly ruled against a motion to dismiss the murder case against the CPD officer based on prosecutorial misconduct, noting that Van Dyke’s lawyer had not shown any evidence of misconduct by Alvarez, and that after losing the primary election, she turned the case over to Special Prosecutor Joseph McMahon.

“(The defense) has shown . . . no official misconduct on behalf of Anita Alvarez, nor has there been any scintilla of misconduct by Mr. Joseph McMahon,” Gaughan said.

McMahon this spring brought a new indictment against Van Dyke for the 2014 shooting, adding 16 counts of aggravated battery to the murder and misconduct charges filed by Alvarez the day before video of the McDonald shooting was released to the public.

The hearing Wednesday at the Leighton Criminal Court Building marked the third Van Dyke’s lawyers have

argued — unsuccessfully — a motion to toss the case against the veteran officer for shooting McDonald. Lawyer Daniel Herbert pointed to memos Alvarez had drafted to explain her decision not to bring charges against officers involved in shootings, including Gildardo Sierra’s 2011 killing of Flint Farmer. Herbert also pointed to emails between Alvarez’s staff that indicated they were aware of media coverage of the McDonald shooting.

“These are the analysis when the state’s attorney is not facing an election,” Herbert said, referring to Alvarez’s decision not to file charges against Sierra and other cops.

But the indictment at hand in Van Dyke’s case was brought by a grand jury empaneled after McMahon, the state’s attorney in west suburban Kane County, took over the case, said Joseph Cullen, one of McMahon’s assistant prosecutors.

Gaughan’s swift action to knock back a defense motion mirrored the judge’s ruling last week against a motion to put journalist Jamie Kalven on the witness stand. At recent hearings, the judge has telegraphed his impatience with defense motions that have tried to draw attention to the media maelstrom that has attended the case since it was charged two years ago.

On Wednesday, the portion of the hearing set aside for argument over a long list of potential defense witnesses quickly devolved into Gaughan lecturing Van Dyke’s team about the rules of evidence and what the judge deemed a lack of preparation.

“We’ve filed a lot of motions in this case,” Herbert said, defending the pace of the defense team.

“Well,” Gaughan said, “File the important ones that will work.”