If motions to overturn Jason Van Dyke’s conviction fail, the former Chicago police officer’s lead attorney says he will ask for a sentence based on second-degree murder alone, not aggravated battery with a firearm, which carries tougher penalties.
“That’s exactly what we’re going to argue,” said Dan Herbert, the attorney, after a Wednesday hearing in the case.
Legal experts say Herbert’s plan is not far-fetched, especially if he can convince Judge Vincent Gaughan that the 16 shots fired by Van Dyke at teenager Laquan McDonald constituted a single act.
Van Dyke was convicted by a jury on Oct. 5 of second-degree murder and 16 counts of aggravated battery with a firearm.
Second-degree murder carries a penalty anywhere from probation to 20 years in prison. The aggravated-battery counts require six to 30 years. The judge could order that any prison sentences run consecutively.
The sentencing range is “as clear as mud,” Herbert said.
The murkiness, experts say, stems at least partly from decisions by Special Prosecutor Joseph McMahon. In 2015, before McMahon was on the case, a grand jury indicted Van Dyke on first-degree murder and official misconduct charges. In 2017, McMahon worked with a second grand jury that added the aggravated-battery charges.
The aggravated battery charges appeared to be a fallback for a jury that might be unwilling to convict the officer of first-degree murder.
Andrea Lyon, a law professor at Valparaiso University and veteran criminal defense attorney, calls that approach questionable and says the defense could make use of it in sentencing.
“The aggravated battery charge, the argument would be, is supposed to be reserved for someone who is shot and does not die,” Lyon said.
“The judge could say, ‘I don’t know whether it was proper or not to charge (that way) and therefore I’m sentencing him under second-degree murder,’ ” Lyon said.
Besides a potentially shorter prison sentence, second-degree murder allows release after serving 50 percent of the term. For aggravated battery with a firearm, Van Dyke would have to serve 85 percent.
McMahon, through a spokesman, declined to comment about sentencing.
On Wednesday, Van Dyke’s attorneys filed two motions asking Gaughan to throw out the conviction and either acquit the former officer or grant a new trial. One motion focuses largely on the judge’s refusal to move the trial away from Cook County. The other argues the shooting was justified.
Van Dyke also faces a potential contempt-of-court ruling for allegedly violating a Gaughan gag order by speaking with reporters before the trial.
Van Dyke is being held in Rock Island County Jail, about three hours west of Chicago.
Brought back to Cook County for Wednesday’s hearing, he appeared in a yellow jail uniform and orange flip-flops. His hands were unshackled but clasped behind his back.
After the hearing, Van Dyke was allowed a visit by his wife and a meeting with his attorneys.