Challenge To Van Dyke Sentence Not 'Political,' Says Attorney General | WBEZ
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Morning Shift

Special Prosecutor, Illinois AG Challenge Jason Van Dyke’s Prison Sentence

Illinois Attorney General Kwame Raoul and Special Prosecutor Joseph McMahon are challenging former Chicago Police officer Jason Van Dyke’s 81-month prison sentence.

In a joint press conference Monday, Raoul and McMahon said they want the Illinois Supreme Court to send the case back to Judge Vincent Gaughan for a new sentence.

Van Dyke was convicted in October of second-degree murder and 16 counts of aggravated battery with a firearm for shooting and killing 17-year-old Laquan McDonald in 2014.

The former Chicago Police officer is expected to serve just over three years of his sentence.

Morning Shift checked in with Raoul and McMahon for more on their decision to challenge Van Dyke’s prison sentence.

On why they decided to review Van Dyke's sentence

Kwame Raoul: Four days before the sentence, I took my oath to become the 42nd Attorney General. Days later, I was approached by my chief deputy and the head of our criminal bills division about the Van Dyke sentencing, bringing to my attention that there may have been an illegality in the sentence in that the judge did not sentence the defendant in accordance with Illinois law. And that they had been in contact with the Special Prosecutors office — which is Mr. McMahon’s office — and were going to be requesting and collaborating to get the transcripts to look into it.

Jenn White: Mr. McMahon, immediately following the sentencing, you said you were satisfied. What changed for you?

Joseph McMahon: So nothing really changed. It was a process that we went through after the sentence was imposed about how Mr. Van Dyke was sentenced, which counts he was sentenced on. And that process began really that evening, Friday evening. As you recall, we finished the sentencing hearing kind of late in the day. Over that weekend, we had some internal meetings —  just my staff. We did start speaking with the Attorney General’s office in the days following the sentencing hearing about our options.

It’s a very narrow path for a prosecutor to get before the Illinois Supreme Court on a sentencing issue, and so we had those preliminary discussions. So I think my comments immediately after the sentencing hearing are accurate. I still feel that way. This petition to the Supreme Court  is not so much about the duration of the sentence or the length of the sentence as much as it is about making sure that we have handled this case from the beginning and to its conclusion — whatever its conclusion is going to be — thoroughly and fairly and accurately. And this is our attempt to make sure that we’ve fulfilled that responsibility.

What would a fair sentence look like?

White: If the Supreme Court decides Judge Vincent Gaughan made a legal error in the way he came to Jason Van Dyke’s sentence, what could a sentence based on the aggravated battery charges — and we should say (he) was found guilty of 16 separate counts of aggravated battery with a firearm along with being found guilty of second degree murder — how would a sentence look different if he were sentenced on those 16 counts?

McMahon: Well it may not look that different if the Supreme Court sends it back for a new sentencing hearing. The issue is whether those sentences on the 16 counts will run consecutive to each other, meaning one after another. And each count is punishable by that sentencing range of between 6 and 30 years on each count. If all 16 counts are ordered to be consecutive, that would be a 96-year minimum sentence. Now the judge will have to make specific findings about severe bodily injury as to each count. We talked about that a little bit at the original sentencing hearing.

We’re asking the Supreme Court to order the judge to make a finding on all 16 counts. If he finds that it’s all one act, the minimum would be 6 years, the maximum would be 30 years. If they’re individual counts and (sic) the judge finds that they must run consecutively, it would be six plus six on each count that he finds severe bodily harm.

White: Jason Van Dyke's appeal attorneys, Darren O'Brien and Jennifer Blagg released a statement and it reads: “By requesting mandamus, they seek to turn the Illinois Supreme Court from a deliberative body into a political battleground.  The filing also opens up a Pandora's box of legal issues that, in the long term, could result in grossly excessive, unjust sentences for defendants that follow in the wake of this request. The Attorney General’s and Special Prosecutor’s filing today leaves Mr. Van Dyke with no choice but to appeal his conviction, prolonging this tragic case for both his family and the McDonald family.” Your reactions?

Raoul: This notion that it’s a political move… I just reject that notion. First off, I just took my oath. I’ve got no election before me. If I chose to run for reelection, that will be four years from now. This matter was brought to me by a staff I inherited less than a week after I took office. And the facts are that it appears that this sentence was inconsistent with the law. It is my constitutional duty to raise issue with regards to this. That’s what we’re doing.

The Supreme Court has ruled on this issue and ironically on the exact two charges. And they have subsequently used that decision from People v Lee in subsequent cases that were brought to the Supreme Court.

McMahon: We filed this writ to the Supreme Court because that’s what the law is. The law requires a sentence on the more serious offense and they have told us that in this scenario, aggravated battery is the more serious offense. They may revisit that —  that is absolutely their prerogative to do that. This is an avenue, this is a case where they’ll have that opportunity, if they accept it.

This interview has been edited for brevity and clarity. Click the “play” button to hear the entire conversation.

GUEST: Illinois Attorney General Kwame Raoul

Special Prosecutor Joseph McMahon; Kane County State’s Attorney

LEARN MORE: Van Dyke’s sentence challenged by attorney general, special prosecutor (Chicago Sun-Times 2/11/19)

Attorney general, special prosecutor challenge Jason Van Dyke’s sentence in petition to state Supreme Court (Chicago Tribune 2/11/19)

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