Imprisoned former Chicago Police Officer Jason Van Dyke is scheduled for release in 33 months but his lawyers say they are gearing up for what could be a lengthy effort to appeal his conviction in Laquan McDonald’s killing.
Jennifer Blagg, an attorney for Van Dyke, said he will seek an “outright reversal” of the jury’s verdict.
The approach would avert a retrial that could end with a heavier sentence than the one Cook County Judge Vincent Gaughan gave Van Dyke in January.
“I know we plan on arguing there was reasonable doubt,” Blagg said.
Legal experts said the plan appears to include arguing that the jury in Van Dyke’s trial lacked sufficient evidence for the Oct. 5 verdict that the officer was guilty of second-degree murder and 16 counts of aggravated battery with a firearm.
“It’s pled all the time; it doesn’t win very often,” retired Illinois Appellate Justice David A. Erickson said, noting that Illinois appeals courts show much deference for what juries can observe during a trial.
“Hearing something is a heck of a lot different than just reading a cold transcript — the inflection, the emotion, the ability to look at somebody and test their credibility based on you viewing them as they testify,” said Erickson, now a senior lecturer at Chicago-Kent College of Law.
A more common appeal path is to argue the trial judge made legal errors.
Van Dyke might claim, for example, that Gaughan erred in his limits on evidence about McDonald’s alleged propensity for violence and his denial of the officer’s request to change the trial’s location.
In the appeal, Van Dyke’s attorneys will face off against the Illinois State’s Attorneys Appellate Prosecutor’s Office, which worked with Special Prosecutor Joseph McMahon’s team before the trial, according to McMahon.
While outright reversals are rare in Illinois, they are not unprecedented. High-profile examples include an appellate court’s 2011 decision to throw out Juan A. Rivera’s conviction by a jury for the 1992 rape and murder of 11-year-old Holly Staker in Waukegan. The decision barred a retrial.
In Rivera’s case, the appellate court’s Second District held that the evidence, when viewed in the light most favorable to the prosecution, had been insufficient for any “rational trier of fact [to] have found the essential elements of the crime beyond a reasonable doubt.”
Gaughan’s sentence for Van Dyke — 81 months in prison with the possibility of release after half that time — was considered too lenient by many police accountability advocates.
Illinois Attorney General Kwame Raoul and McMahon filed a petition asking the Illinois Supreme Court to throw out the sentence. That petition was denied.
McDonald, 17, was carrying a knife and walking away from officers the night of Oct. 20, 2014, when Van Dyke and his partner drove past the teen, exited their SUV and confronted him. A police dashcam video contradicted reports by officers that McDonald attacked and injured Van Dyke.
A public outcry led to a yearlong U.S. Department of Justice investigation that found widespread constitutional abuses by the police department and a lack of accountability. That probe led to a reform agreement, known as a consent decree, that will be enforced by a federal judge.
Apart from the murder trial, three of Van Dyke’s co-workers — a patrol officer, a former patrol officer and an ex-detective — were criminally charged with covering up for him. In January, Cook County Judge Domenica Stephenson found them not guilty.
On April 12, a Chicago Police Board hearing officer finished a three-day evidentiary proceeding about recommendations to fire a sergeant and three other officers accused of lying about the shooting. The decision on the recommendation is now up to the board’s nine members, all appointed by the city’s mayor.
Van Dyke was transferred in February from an Illinois prison to federal custody. He is listed as an inmate of Otisville Federal Correctional Institution, a minimum- to medium-security facility about 90 minutes northwest of New York City. He is scheduled for release on Feb. 8, 2022.