On Thursday morning, attorneys for three Chicago officers will have to tell Cook County Judge Domenica Stephenson whether or not they’ll put on a defense. Putting on a defense is risky. So is the decision to not put on a defense. WBEZ talked through the risks with five local attorneys.
The case so far
The officers are charged with covering up for Jason Van Dyke the night he shot Laquan McDonald. Prosecutors called seven witnesses over four days and focused on the reports officers wrote that night inflating the threat that McDonald posed.
The defense so far
Attorneys for the officers have cross-examined and attacked the witnesses put up by prosecutors. They also made their case in opening statements and will do so again in closing arguments. But putting on a defense case involves putting up witnesses and evidence, and that’s where the risk comes in.
Why they shouldn’t mount a defense
The cover-up case is a bench trial, meaning Judge Stephenson, not a jury, will decide whether the three officers are guilty.
It is not uncommon in bench trials for defense attorneys to decide not to call any witnesses at all, because while jurors expect to hear from defendants, judges don’t hold it against them if they choose not to.
Veteran defense attorney Steve Greenberg said putting on any sort of defense risks opening the door for prosecutors to improve the case they’ve already laid out.
Greenberg gives a hypothetical example: Pretend there’s a text message sent to Van Dyke promising that the defendants would back him up. Prosecutors may not have been able to find a basis to show those texts to the judge with their own witnesses, but could find a legal basis to introduce them into evidence through defense witnesses. Again, that’s a fake example Greenberg gives to explain the risks of putting witnesses on the stand.
“I don’t think the prosecution has a very strong case, and why give them any opportunity to make it better, to fill in a hole,” Greenberg said.
Attorney Sharone Mitchell has also been watching the trial and agrees with Greenberg’s assessment of the case so far.
“I don’t know if I would feel obligated to do much,” Mitchell said.
Ultimately the decision comes down to whether the defense believes prosecutors have proven their case beyond a reasonable doubt. If not, there’s no reason to take any risk at all.
Why the defense should call witnesses
Experts said there are some specific pieces of evidence defense attorneys might feel obligated to attack.
Mitchell said the defense might want to counteract Chicago Police Department emails introduced on the last day of the prosecution’s case. Some of those emails, to and from unindicted police officials, show people working to justify Van Dyke’s killing of McDonald.
Attorneys for the officers have been quick to point out that their clients did not write the emails, and in many instances, the emails were not even addressed to the defendants.
That’s a point defense attorneys may want to bolster, said Chicago-Kent College of Law Professor Richard Kling. Kling cautioned that he did not know the case inside and out, but said if he were in the attorneys’ shoes, he might call department personnel to the stand to add more context to those emails.
Defendants would want the judge to know “they didn’t send the emails, they didn’t get the emails,” Kling said.
Valparaiso University Law Professor Andrea Lyon said one other potential avenue for the defense would be to call character witnesses to counteract the negative portrayal of the defendants by prosecutors.
Prosecutors have tried to prove the three defendants lied in their police reports. One potential topic for character witnesses, Lyon said, is truthfulness. However, she cautioned, calling character witnesses could open the door for prosecutors to attack the officers in ways they have not otherwise been able to do so far.
Why the officers should testify on their own behalf
If the defense does call witnesses, attorneys said there aren’t a lot of options before getting to the defendants themselves.
The strongest part of the prosecution’s case, according to Kling, is the video of McDonald’s death.
“The video is the video and the video is inconsistent with the police reports,” Kling said.
And he said defense attorneys need to explain those inconsistencies.
“I’m not sure how you do that without calling the defendant to the stand,” he said.
Attorney Torri Hamilton said another point in favor of calling the officers is that they are experienced witnesses who testify “as part of their job” and so would do better than the vast majority of criminal defendants on the witness stand, especially because they don’t have criminal records to attack, like many other defendants.
Why the officers should not take the stand
Every attorney who spoke to WBEZ stressed the huge risk for the officers if they take the stand.
“Your defendant would be literally on the defensive, ‘Why did you write that word, why did you put that comment,’” Greenberg said, predicting tough questioning from special prosecutors. “You’re not gonna get anywhere. Look at what happened when Van Dyke testified. … That didn’t go so well for him, right?”
And, Hamilton said, when a defendant takes the stand, it introduces the issue of “credibility” into the judge’s decision making.
“Once you put your client on the stand, the fact finder is thinking about whether this person is lying. Whereas if you don’t put your client on the stand … the fact finder has to focus on the state’s case only and not have to be dealing with this credibility question,” Hamilton said.
Greenberg said calling your own client to the stand in a bench trial is “typically a Hail Mary.”
“In a bench trial, you only want your defendant to testify if you’re behind, and I don’t think they’re behind,” Greenberg said.
Attorneys for Officer Thomas Gaffney, former Officer Joseph Walsh, and ex-Detective David March are expected to announce whether they’ll put on a defense or not Thursday morning. The officers are charged with obstruction of justice, official misconduct, and conspiracy.
Patrick Smith reports on criminal justice for WBEZ. Follow him @pksmid.