JUDGE DENIES MOTION TO DISMISS MURDER CHARGES AGAINST JASON VAN DYKE

Jason Van Dyke listens to arguments. The defense attorneys for Jason Van Dyke unsuccessfully argued that first degree murder charges should be dropped against their client during a hearing at the George Leighton Criminal Court Building in Chicago Thursday May 25, 2017. | Nancy Stone/Pool/Chicago Tribune

A Cook County judge on Thursday refused to throw out first-degree murder charges against Chicago Police officer Jason Van Dyke.

Judge Vincent Gaughan ruled against motions by Van Dyke’s lawyers that sought to dismiss the serious charges against the veteran officer, who gunned down Laquan McDonald with a volley of 16 shots in 2014.

Van Dyke’s lawyers argued that political newsure stemming from public “fury” stoked by graphic video of the shooting pushed prosecutors to charge Van Dyke with murder, despite laws that protect police officers who use deadly force to subdue offenders fleeing from violent crimes.

“On October 20, 2014 when this shooting took place, this was business as usual,” defense attorney Daniel Herbert said, drawing a smattering of hisses from a courtroom gallery filled largely with protesters.

“Yes, it was an ugly shooting, ugly from the standpoint that it showed a graphic image of an individual being shot and killed by police, not unlike most shootings, where a police officer shoots at an individual.

“What changed was not the law. What changed was…the way the state’s attorney conducted business, the way the state’s attorney had conducted business for decades and decades,” Herbert said.

Daniel Herbert

Daniel Herbert argues against the first degree murder charges. The defense attorneys for Jason Van Dyke unsuccessfully argued that first degree murder charges should be dropped against their client during a hearing at the George Leighton Criminal Court Building in Chicago Thursday May 25, 2017. | Nancy Stone/Pool/Chicago Tribune

Herbert has made similar arguments in seeking to get Gaughan to throw out charges in an indictment brought in November 2015 by former State’s Attorney Anita Alvarez, who was facing a primary battle in her bid for reelection that spring. After losing to Kim Foxx, Alvarez turned the case over to a special prosecutor, Kane County State’s Attorney Joseph McMahon, who brought a new indictment in March that tacked 16 counts of aggravated battery to the original charge of first-degree murder.

Thursday, McMahon said the notion that police powers “immunize” officers from criminal charges was “chilling.”
“But if defendant is arguing that it was his duty to shoot Laquan McDonald, that is a chilling and scary proposition that he is trying to advance in this courtroom,” McMahon said.

“The Chicago Police Department, this defendant’s training, instructions from his supervisor, do not immunize him from any criminal conduct. It was his actions, it was his individual conduct on that day on that night that brought him to this courtroom facing these charges.”

Making his case to throw out the charges, Herbert gave the most detailed glimpse yet of the case he might make for Van Dyke at trial, a defense that likely will hinge on Van Dyke’s intent when he opened fire on McDonald, and laws that allow police officers to use deadly force.

Van Dyke had been getting a coffee at a 7-Eleven only moments before he and his partner were dispatched to the 4100 block of South Pulaski Road, where other officers were tailing the 17-year-old McDonald. The owner of a trucking yard had reported seeing McDonald breaking into trucks, and said when he confronted the teen, McDonald threatened him with a knife. McDonald was walking away from officers, still holding the knife, when Van Dyke arrived at the scene, Herbert said.

“Therefore the law… told police officers you can shoot ’em. Not only can you shoot ’em, it’s your duty to shoot ’em. You have to prevent the escape of this dangerous, armed individual,” Herbert said.
McMahon has since presented evidence to a second grand jury, which handed up the new indictment against Van Dyke that added the 16 counts of aggravated battery — one for each time Van Dyke pulled the trigger.

Dan Herbert in court

Randy Rueckert, from left, Tammy Wendt and Daniel Herbert with their client Jason Van Dyke at the start of the hearing. The defense attorneys for Jason Van Dyke unsuccessfully argued that first degree murder charges should be dropped against their client during a hearing at the George Leighton Criminal Court Building in Chicago Thursday May 25, 2017. | Nancy Stone/Pool/Chicago Tribune

A half-dozen protesters had gathered outside the courthouse entrance ahead of Thursday’s hearing, and one man, wielding a bullhorn, spotted Van Dyke walking toward the front doors around 8:30 a.m. and followed him inside, and shouted at Van Dyke until he was shooed out by sheriff’s deputies.

Security measures seemed to reflect a “safety plan” created in response to repeated requests by Van Dyke to be allowed to stay home to avoid the crowds.

Spectators were required to pass through a metal detector outside Gaughan’s courtroom even after making the usual trip through the security stations at the main entrance to the building. At least one person was told by a sheriff’s deputy to close their coat, in order to cover a slogan on their T-shirt, before entering the courtroom.

Extra sheriff’s deputies were stationed around the courtroom during the hearing, and Gaughan cautioned the gallery crowd to remain silent during the hearing or risk being charged with contempt of court.

The hearing had largely passed without incident, save for a smattering of hisses from the audience during Hebert’s argument— then, spectator Moises Bernal snapped his fingers in muted applause for Gaughan’s ruling. The judge had deputies bring Bernal out of his seat, and asked him why he was in court.

Sheepishly, Bernal turned away from the judge and toward Van Dyke, as he answered.

“To see a racist murderer on trial, a racist killer,” Bernal said.

Gaughan ordered Bernal held on $40,000 bail.

Officer in court

Moises Bernal, left, who was in the courtroom to hear the proceedings, was held in contempt by Judge Vincent Gaughan after snapping his fingers. Bernal told the judge he was in court to see a “racist murderer” go to jail. The defense attorneys for Jason Van Dyke unsuccessfully argued that first degree murder charges should be dropped against their client during a hearing at the George Leighton Criminal Court Building in Chicago Thursday May 25, 2017. | Nancy Stone/Pool/Chicago Tribune

“You better get your attorney, because this is very, very serious,” Gaughan said.

As at most hearings, Van Dyke sat beside his father in the front row of the courtroom gallery or beside his attorneys, his gaze pointedly facing forward, away from the crowd behind him. When the hearing concluded Thursday, a phalanx of uniformed officers escorted him and his father out of the courthouse and across California Avenue.

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