A Cook County judge is refusing to toss out murder charges against the Chicago cop who fatally shot 17-year-old Laquan McDonald, a killing recorded by a police dashcam video that fueled a national outcry about police accountability.
A grand jury in March indicted officer Jason Van Dyke on six counts of first-degree murder, 16 counts of aggravated battery with a firearm and one count of official misconduct. A different grand jury had handed up the same murder and official-misconduct charges 15 months earlier.
Van Dyke attorney Dan Herbert argued at a Thursday hearing in the Leighton Criminal Courts Building that prosecutors failed to tell the second grand jury about an Illinois law that applied to how officers treated McDonald, who was carrying a knife with a three-inch blade during the 2014 incident.
“He was a forceful felon and he was fleeing arrest,” Herbert said. “In those situations, you can shoot. Not only can you shoot, it’s your duty to shoot. You have to prevent the escape of this dangerous armed criminal.”
The hearing revealed what could be a Van Dyke defense at trial. It also provided a warm-up for Herbert. At several points during the proceeding, he seemed to be addressing the television camera allowed inside the courtroom.
Special prosecutor Joseph McMahon responded that Herbert’s argument was “chilling and scary” and that it “ignores the historical role of the grand jury.”
“If the defendant’s trial strategy is that he was justified, that it was his duty to shoot Laquan McDonald 16 times,” McMahon said, “that is an affirmative defense.”
“There is no law in this country that says an indictment should be dismissed because the prosecutor fails to present a potential affirmative defense or any exculpatory information to a grand jury,” McMahon said. “It is an accusatory body.”
Judge Vincent Gaughan ruled that the grand jury had enough evidence for the indictment and denied two Van Dyke motions to dismiss the charges.
“There has been no prosecutorial misconduct before the grand jury on this indictment,” Gaughan said.
After the ruling, a spectator started snapping his fingers in agreement. Gaughan had sheriff’s deputies bring the man to the bench.
“What was your purpose here today?” the judge asked the man, who identified himself as Moises Bernal.
“To see a racist murderer on trial,” Bernal answered.
Gaughan said Bernal was in “direct contempt” and ordered him held on $40,000 bail.
Bernal was among roughly three dozen police-accountability activists inside the courtroom during Thursday’s hearing — their largest turnout for a Van Dyke proceeding in months.
The Cook County Sheriff’s Office had beefed up security and set up a metal detector outside the courtroom before the hearing.
Some activists are complaining that Gaughan has not scheduled the trial. They point out that Van Dyke was first charged 18 months ago and that the shooting took place more than 31 months ago.
In another recent trial of a Chicago officer for a fatal shooting, Det. Dante Servin was acquitted of involuntary manslaughter and reckless conduct in 2015, almost 37 months after the incident, which killed Rekia Boyd, 22.
The McDonald shooting took place October 20, 2014, after Van Dyke and his beat-patrol partner responded to a police-radio dispatch requesting help for cops pursuing a knife-wielding male who allegedly had been breaking into trucks on the city’s Southwest Side.
Mayor Rahm Emanuel’s administration withheld the video until a Cook County judge ordered its release in November 2015.
The video release sparked months of street protests and, according to a WBEZ investigation, may have ignited a gun-violence surge that continues to plague several parts of Chicago’s South and West sides.
The video also led to a yearlong U.S. Justice Department investigation of the police department. That probe concluded that CPD “engages in a pattern or practice of using force, including deadly force, in violation of the Fourth Amendment.”
Former Cook County State’s Attorney Anita Alvarez, defeated for reelection in the March 2016 Democratic primary, recused her office from the Van Dyke case after civil-rights advocates claimed she had a conflict of interest — a claim she denied.
Gaughan swore in McMahon, the Kane County state’s attorney, as special prosecutor last August.
Separately, a Cook County special grand jury is considering an alleged police cover-up after the shooting.
Police Superintendent Eddie Johnson has also recommended that the city’s Police Board fire Van Dyke and four other officers involved in the incident.
Herbert, Van Dyke’s attorney, has motioned for a stay in those proceedings pending the murder case.
Judge Gaughan set the next hearing in the murder case for June 2.