Jason Van Dyke at his lawyer’s office on Aug. 28, 2018. (Brian Cassella/Chicago Tribune)
By: Megan Crepeau | Contact Reporter
Chicago Tribune
In a dramatic move, prosecutors want Chicago police Officer Jason Van Dyke held in contempt of court and taken into custody for giving the Chicago Tribune an interview just days before his highly anticipated trial was slated to begin.
The officer’s comments to a Tribune reporter violated a long-standing court order imposed by Judge Vincent Gaughan, prosecutors alleged Thursday in court filings.
“Jason Van Dyke knowingly and intentionally … engaged in conduct calculated to embarrass, hinder or obstruct the court in its administration of justice,” wrote Kane County State’s Attorney Joseph McMahon, who is acting as special prosecutor in the fatal shooting of 17-year-old Laquan McDonald.
Van Dyke’s legal team quickly blasted the attempt to hold the officer in contempt and jail him, calling it “an egregious abuse of power” and a violation of his “constitutional right to exnews his feelings.”
Attorney Daniel Herbert, who was at the Tribune interview of Van Dyke on Tuesday, noted that the officer had never before spoken out despite the fact that he has been the subject of thousands of news stories — many of them “extremely” negative and false, according to Herbert.
“He feels this could be his only opportunity to exnews his feelings,” Herbert said.
The statement went on to say that in the interviews Van Dyke “was careful not to discuss evidence in the case or the shooting itself.”
“He exnewsed his personal feelings, the impact this had had on his family and his hopes that protests will be peaceful and no (one) will be hurt in the city,” Herbert said.
A rare Saturday hearing has been scheduled for Gaughan to decide if he will hold Van Dyke in contempt and revoke or increase his bond.
That sets up the possibility that Van Dyke could be led from Gaughan’s courtroom in custody on Saturday and locked up in Cook County Jail for days or more. The highly anticipated trial is scheduled to begin Wednesday with jury selection.
When he was charged with murder in McDonald’s shooting in November 2015, Van Dyke was held in Cook County Jail until his family raised $150,000 for his bond. The officer was kept in protective custody at the jail for six nights.
Police dashboard camera video shows Van Dyke opening fire within seconds of exiting his squad car in October 2014 as McDonald walked down the street holding a knife, contradicting reports from police at the scene that the black teen had lunged at officers with the weapon. The court-ordered release of the video in November 2015 sparked months of protests and political upheaval.
The filings by McMahon alleged that Van Dyke’s interview with the Tribune violated the judge’s “decorum order” prohibiting law enforcement employees involved in the case or anyone subpoenaed or expected to testify from commenting substantively on the case outside of court.
The request by prosecutors to hold Van Dyke in contempt and jail him marks an unusually aggressive move for McMahon. The veteran prosecutor has brought a consistently understated style to the courtroom since his appointment in August 2016 after then-Cook County State’s Attorney Anita Alvarez lost a primary bid for re-election and withdrew from Van Dyke’s prosecution while still in office.
Barry A. Spector, a longtime criminal-defense attorney who teaches at DePaul University College of Law, agreed that the attempt to jail Van Dyke over the Tribune interview represents a “rare and aggressive” tactic for a prosecutor.
“But on the other hand … doing a front-page interview with a defendant on a murder case on the eve of trial is even rarer and even more aggressive,” Spector said. “I could understand why the prosecutors are upset about it because (the defense is) influencing the jury pool.”
Gaughan has been unusually strict in controlling the dissemination of information about the case. He has regularly held lengthy discussions with lawyers behind closed doors, emptied his courtroom of spectators and reporters for several recent hearings in his courtroom, and kept all court filings under wraps by directing they be filed in his chambers until the state Supreme Court ordered him to stop that practice in May.
In his filings Thursday, the special prosecutor specifically cited a dozen statements that Van Dyke made to the Tribune in the interview as violating Gaughan’s order and included a copy of the Tribune story that first ran online Tuesday night.
Among the statements was that Van Dyke viewed himself as “a political scapegoat and the victim of ‘the bandwagon of hatred’ on social media,” he feared a lengthy prison sentence and he had never before fired his gun in his police career.
The special prosecutor also mentioned the anecdote that the Tribune led its story with — that when he first got home after McDonald’s shooting, Van Dyke headed for the shower, sat down in the tub “until the water went cold, and even then I couldn’t get out.”
Herbert, a second Van Dyke attorney and a media strategist were present when the officer gave his interview to the Tribune. The conversation was tightly controlled; his lawyers requested questions to be submitted in advance, would not allow the conversation to be recorded on video and interrupted some questions to instruct Van Dyke not to answer.
Audio of the interview also aired in part on WBEZ-FM 91.5.
Van Dyke also gave a separate interview to the Chicago-area Fox affiliate on Wednesday.
The controversy comes at a time when Van Dyke’s lawyers continue to pursue a bid to move the trial outside Cook County, arguing that the extensive publicity generated by the shooting and charges makes it impossible for a fair jury to be found here.
Gaughan held off on ruling on that motion until after jury selection begins, hinting he felt an unbiased jury could be selected in Cook County.
Meanwhile, Herbert has never officially announced if he would let a jury decide Van Dyke’s fate or opt to leave that decision in Gaughan’s hands with a bench trial.
Robert Loeb, a longtime attorney who also teaches at DePaul’s law school, said Van Dyke’s own bid for publicity might make it more difficult for his lawyers to succeed in moving the trial.
“When someone wants to move a trial because of an abundance of publicity, they’re not helping their case when they contribute to that publicity,” Loeb said.
While Van Dyke’s lawyers said he didn’t talk about evidence in the case or the shooting itself, Spector said that some of his comments came close to the line. For one, Van Dyke told the Tribune he would not have fired if he didn’t believe his life or that of other officers was in danger.
“That is the kind of testimony you would give when you’re trying to do a self-defense,” Spector said. “They walked right to the edge.”
It turns out that Van Dyke had cited Gaughan’s decorum order in refusing to answer questions under oath about McDonald’s shooting in April 2016 as part of an investigation by city Inspector General Joseph Ferguson.
According to a copy of the inspector general’s report on the investigation — obtained by the Tribune in late 2016 — Ferguson concluded that the decorum order was not a sufficient reason for Van Dyke to refuse to testify.
The Chicago Tribune’s Jason Meisner contributed.
