Attorneys for Jason Van Dyke say their client may appeal his second degree murder conviction if his sentence is increased.
A Cook County judge sentenced the former Chicago Police officer to 81 months in prison last month for shooting and killing 17-year-old Laquan McDonald in 2014. He was found guilty of second degree murder and 16 separate counts of aggravated battery with a firearm.
Since then, Illinois Attorney General Kwame Raoul and Special Prosecutor Joseph McMahon have asked the Illinois Supreme Court to review Van Dyke’s sentence. They say they believe the judge overseeing the case misinterpreted the sentencing statute.
Van Dyke's attorneys Jennifer Blagg and Darren O’Brien on Monday filed a response to the state’s request for a new sentence.
"(Jason Van Dyke's) current mindset is that he does not want to raise issues on appeal that would result in him being rewarded a new trial or a new sentencing hearing," according to the 15-page brief. "However, if his sentence is increased, his mindset would likely change, and he would seek a new trial."
Morning Shift sat down with Blagg, a criminal defense attorney representing Van Dyke on his appeal.
On how the state's request for a new sentence could impact his appeal
Jennifer Blagg: Right not as it stands, Mr. Van Dyke was sentenced on second degree murder. If the prosecutor is successful in this case — by the prosecutor I mean the Attorney General and the Special Prosecutor — if they're successful, potentially the Illinois Supreme Court could sentence Mr. Van Dyke on his aggravated battery with a firearm counts. During the trial, this was an issue. The Special Prosecutor brought the aggravated battery counts a long time after he was originally charged with the murder. I don't want to get too into the legalities... but you have to bring those charges within 120 days. So we believe there's a valid argument that he should have never been allowed to be charged with aggravated battery. So obviously if he gets sentenced on aggravated battery, we would argue that issue on appeal. But as it stands right now, why would we argue it? Because he didn't get sentenced on that count. So to say it wouldn't impact his appeal is just incorrect. There's a lot of issues he would raise if he would had been sentenced on another count.
On fighting the state's case
Blagg: In their sentencing memorandum to Judge (Vincent) Gaughan, who is the judge who gave Mr. Van Dyke his sentence, they argued that this one case, People v. Lee controlled. And (that case) required, they argued, that Mr. Van Dyke be sentence on aggravated battery. We argued in our sentencing memorandum yes, that was the holding of People v. Lee, but (it's) distinguishable from Mr. Van Dyke's case and we listed all these reasons — a fact that Mr. Raoul actually acknowledged when he had his interview with you, where he said the facts of the case were different.
On Jason Van Dyke's beating in a Connecticut prison
Blagg: I don't know a lot about the move, except that it happened. Prison officials understandably don't communicate with anyone about why they're transferring someone or when they're doing it because of safety reasons. I assume it was done for all the right reasons, which was, they believed he would be safer in that facility. Unfortunately, that turned out not to be true.
On the next steps in the case
Jenn White: As you move forward, what are the next steps for your team?
Blagg: Well, we first have to see what the Supreme Court does.
White: Because they're not required to take up this case.
Blagg: Absolutely. And then our next steps depend on what happens then. So it's really a wait and see approach. If the Supreme Court grants mandamus, obviously we have to comply with what they want, and possibly brief the case, argue the case and things like that. If they don't, then we have to evaluate what issues to raise in Mr. Van Dyke's appeal.
White: So either way, regardless of whether or not the Supreme Court takes up a review of this sentence, you will be appealing Jason Van Dyke's conviction?
Blagg: Potentially. It depends on what issues we would raise in the appeal. Mr. Van Dyke has indicated to us that he does not want a new trial... you can imagine how extremely difficult this was for his family, and he doesn't want to put them through that again. If something changed, and obviously if he got a very very high sentence, his position might change — I haven't even discussed that with him, but it potentially could. So it depends on again what happens.
This interview has been edited for brevity and clarity. Click the “play” button to hear the entire conversation.
GUEST: Jennifer Blagg, criminal defense attorney representing Jason Van Dyke on his appeal
LEARN MORE: Jason Van Dyke's wife speaks out after former CPD officer beaten in Conn. prison (ABC-7 Chicago 2/14/19)