A battle over how severely Jason Van Dyke should be punished for his conviction in Laquan McDonald’s killing began Monday with dueling sentencing briefs in which prosecutors argued that the jailed former officer should get what would amount to decades in prison and defense attorneys pushed for probation.
The briefs clash on two major issues. The first is which of Van Dyke’s offenses is more significant for sentencing. The second is whether the 16 shots he fired constituted one act or many. The answers to those questions drastically affect how much time, if any, the former officer could be locked up in prison.
Which charge is more serious?
Addressing the first issue, Special Prosecutor Joseph McMahon notes that Van Dyke’s conviction includes 16 counts of aggravated battery with a firearm. Each of those counts carries a heavier penalty, 6 to 30 years in prison, than Van Dyke’s other offense, second-degree murder. The murder conviction can be punished with probation alone.
McMahon argues Van Dyke should have to serve the minimum six years for each battery count — and serve those sentences consecutively. That would total 96 years.
But Van Dyke’s attorneys argue that the battery counts should “merge” into the second-degree murder count — a “greater” offense but not requiring prison time. The defense asks for punishment on second-degree murder alone.
How many acts?
The second issue revolves around how many “acts” Van Dyke committed in the shooting. Legal experts say his chances of avoiding decades in prison are better if his attorneys can convince Judge Vincent Gaughan that the 16 shots constituted a single act, as the defense brief argues.
But McMahon’s brief argues that Van Dyke “committed sixteen separate acts.”
Because aggravated battery is rare among charges when the victim has died, Gaughan’s options appear wide open, legal experts say.
Adding further complication is Gaughan’s ability to order sentences to run consecutively — one after another — or concurrently.
Yet another consideration are Illinois laws requiring Van Dyke to serve at least 50 percent of a prison sentence for second-degree murder and at least 85 percent of any aggravated-battery sentence.
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. The officer, who was on duty, kept firing after McDonald collapsed to the pavement.
Van Dyke’s union has hired attorneys Jennifer Blagg and Darren O’Brien to appeal the conviction. Those same attorneys signed his sentencing memo, effectively displacing Dan Herbert, who has led Van Dyke’s defense since before his indictment.
Van Dyke, convicted by a jury in October, is being held in a county jail about three hours west of Chicago. His sentencing hearing is scheduled for Friday.
In a separate trial, Cook County Judge Domenica Stephenson says she will rule on Thursday whether three of Van Dyke’s fellow officers are guilty of charges they conspired to cover up for him.