Prosecutors in the trial of three Chicago police officers charged with covering up for Jason Van Dyke are having a hard time getting some statements by “unindicted co-conspirators” into the evidence.
The statements, at least some taken from police emails, are intended to show there was a broad effort in the Chicago Police Department to protect Van Dyke after he shot Laquan McDonald in 2014.
Those messages were expected to be the final evidence in the prosecution’s police code-of-silence case against Officer Thomas Gaffney, 45, former Officer Joseph Walsh, 49, and ex-Detective David March, 60, who face charges of obstruction of justice, official misconduct, and conspiracy to commit those offenses.
The statements include email between then-superiors of March.
‘Offender chose his fate’
In a court filing by the prosecutors last summer, they describe a message sent 13 days after the shooting. That message, from Sgt. Daniel Gallagher to Lt. Anthony Wojcik, claims that Van Dyke did not have time to “wait for backup or for a Taser” before trying to “stop or disarm the out-of-control threat.”
Contradicting a now-infamous police dashcam video, the email describes Van Dyke and Walsh in “retreat” while McDonald is “advancing toward” them.
“We should be applauding (Van Dyke) not second-guessing him,” Gallagher wrote.
“Offender chose his fate,” Gallagher added, referring to McDonald.
Defense attorneys objected to including that email and other statements in the case, claiming prosecutors had fallen short of legal standards.
“They haven’t presented the evidence that they proffered to us ahead of trial, that they said they were going to show you to prove the existence of the conspiracy,” Todd Pugh, an attorney for Walsh, argued late Thursday.
Cook County Judge Domenica Stephenson said she would announce her decision on admitting the statements next Tuesday afternoon. Her ruling could signal her view of the strength of the case’s conspiracy charges.
Eventually Stephenson will also decide the verdict because the defendants have waived their right to a jury.
The arguments over the emails came at the end of the trial’s third day Thursday. Earlier in the day, prosecutors called a bank-maintenance worker, Jose Torres, to the witness stand. Torres, who was driving his son to the hospital, testified he had a “clear” view of the shooting.
“As soon as I heard the gunshots, (McDonald) fell to the ground. There was a pause in shooting. All I saw was him just move, it seemed like he was in pain,” Torres testified. “After the pause there were so many (gunshots) that I was upset about it.”
Torres testified that after the shooting, a police officer waved him away from the scene without talking to him, testimony prosecutors hope bolsters their case that the department worked to protect one of their own the night of the shooting.
Torres said a few days later he reached out to the Chicago agency in charge of investigating police shootings to tell what he had witnessed that night. He said he was driven to do so after he heard someone on the news incorrectly describe McDonald’s actions leading up to the shooting.
“I wanted to see if there was anything on the news about the shooting. And when I heard, I guess the police spokesman, say that he was lunging, that Laquan McDonald was lunging at the police, and when I found out that all he had was a knife, I told my wife at that moment, ‘They’re lying,’ ” Torres testified.
On cross-examination, James McKay, March’s attorney, pointed out that the person speaking to the media for the officers was a representative of their union, not the police department.
“You understand that’s two different things?” McKay asked Torres.
McKay also hammered Torres on the fact that he never reached out to police on his own.
“You didn’t call 911, even though it had upset you,” McKay said.
Torres explained he reached out to the city agency and thought that was all he needed to do.
The trial is on a break until Tuesday. After the prosecution rests, defense attorneys say they will move for a “directed finding” — an acquittal before the judge has even heard the defense evidence.
Requests for a directed finding are common but rarely granted. Exceptions include the 2015 acquittal of CPD Detective Dante Servin, who fatally shot an unarmed woman who was walking from a loud party, and last month’s acquittal of former Chicago police dispatcher Keli McGrath in the nonfatal shooting of a woman during a road-rage incident.
McKay, March’s attorney, represented McGrath.
Chip Mitchell and Patrick Smith report on criminal justice for WBEZ. Follow them at @ChipMitchell1 and @pksmid.