Jason Van Dyke could shave off years from an expected prison term if he can make a convincing statement Friday at his sentencing that he feels sorrow for Laquan McDonald’s death, according to legal experts.
“I think Van Dyke needs to say, ‘Nobody wants to take anybody’s life. I made that choice and I would never, ever want to have to make that choice again,’ ” said defense attorney and former Cook County prosecutor Donna Rotunno.
And if that choice has affected the jailed former Chicago police officer, Rotunno said, “he needs to talk about how and why — on an emotional level.”
Van Dyke’s opportunity to address Judge Vincent Gaughan at the sentencing is known as the statement of allocution. The statement is unsworn and not subject to cross-examination.
Darren O’Brien, one of Van Dyke’s attorneys, would not say whether his client will make a statement Friday but he pointed to potential benefits.
“The opportunity to speak is for him to say what he has in mind about the incident and what’s happened,” O’Brien said. “It’s not a retrial. It’s going to be a statement of his feelings and so forth and, depending upon how that comes out, it could have a positive effect.”
But defense attorney Andrea Lyon, a former dean of Valparaiso University Law School, said there are risks.
“Some people have a very difficult time speaking in public and can come off as aloof or arrogant when, in fact, they’re just terrified,” Lyon said. “A lot depends on whether or not he is able to express what he thinks and feels in a way that will reach Judge Gaughan.”
If Van Dyke does not sound sincere, the experts said, he would be better off taking a pass on making the statement.
Because Van Dyke is planning to appeal his conviction, he also has an interest in avoiding words implying guilt.
Rotunno said that would not be difficult because, unlike many convicted murder defendants, Van Dyke is established as the shooter by a video.
“It’s not a question of who fired the shots,” Rotunno said. “It’s a question of whether or not the firing was justified. And I don’t think that would change no matter what he says.”
Lyon agrees Van Dyke could help himself by making a statement if there are feelings behind his words.
“It’s not what you say but how you say it,” Lyon said. “If he has something to say he probably should say it.”
Van Dyke opened fire on McDonald, 17, as the teen carried a knife and walked away from officers on a South Side road in 2014. Van Dyke, who was on duty, kept firing after McDonald collapsed to the pavement.
A jury last October convicted Van Dyke, 40, of second-degree murder and 16 counts of aggravated battery with a firearm.
The first volley in the battle over how severely Van Dyke should be punished came Monday, when Special Prosecutor Joseph McMahon and defense attorneys filed sentencing memos.
At Friday’s hearing, both sides have said they are planning to call witnesses. The proceedings will also include arguments.
In a separate trial, Cook County Judge Domenica Stephenson was scheduled to rule on Thursday afternoon whether three of Van Dyke’s fellow officers are guilty of charges they conspired to cover up for him.