Defense attorney Daniel Herbert argues to present a list of 25 witnesses for the defense; nine of those witnesses were allowed. He and police officer Jason Van Dyke appeared in front of Judge Vincent Gaughan on Thursday Jan. 18, 2018 at the Leighton Criminal Courts Building in Chicago. | Nancy Stone/Pool/Chicago Tribune
A motion to change the venue outside county had been expected, given the protests that erupted in 2015, when then State’s Attorney Anita Alvarez announced murder charges against Van Dyke on the same day city attorneys released video of Van Dyke firing 16 shots at McDonald. Others have questioned whether the opinions of citizens in the jury pool matter, as the defense might be better served seeking a bench trial.
Thursday, lawyers in the case also agreed to a schedule to exchange lists of prospective witnesses and discussed a handful of outstanding subpoenas.
Jason Van Dyke sits at the defense table, listening to his attorneys on Thursday Jan. 18, 2018 at the Leighton Criminal Courts Building in Chicago. | Nancy Stone/Pool/Chicago Tribune
Gaughan in recent weeks has seemed to grow impatient with the pace of the defense team’s efforts to corral witnesses. Gaughan, on Thursday, ruled on the admissibility of testimony from witnesses Van Dyke’s legal team intends to call to show McDonald’s “propensity for violence” by testifying to incidents prior to the shooting.
The testimony will be key to building a self-defense case for Van Dyke, who told investigators McDonald was moving toward him and his partner when he opened fire — an account that seems not to match video that shows the 17-year-old walking away. However, the rules for admitting testimony are narrow, and Gaughan ruled that nine out of the 25 witnesses Herbert had contacted were able to take the stand.
Herbert said repeatedly that the witnesses — most of them staff at the Cook County Juvenile Detention Center who witnessed McDonald getting in fights — were reluctant to talk with him or his investigators. What they will be allowed to testify about will be decided at a later date, but Herbert’s brief, anonymized accounts of his interviews with the witnesses painted a picture of McDonald as a teen who got in numerous fights with staff at the county’s juvenile jail and courtroom staff.
Court and state Department of Children and Family Services files have shown McDonald was in and out of foster care or left to stay with relatives for much of his young life. He first became a ward of the state after his mother was investigated for neglect when he was just 3.
Several witnesses were on hand at an August 2013 court hearing where McDonald appeared to be intoxicated — and later tested positive for PCP and marijuana, Herbert said — and struggled with courtroom deputies, possibly spitting on one.
Assistant Special Prosecutor Jody Gleason questioned the lack of specificity of one witness’s version of events and said that McDonald struggling against courtroom deputies doesn’t necessarily indicate a pattern of violent, aggressive behavior.
“All she indicates ‘(McDonald) was going nuts in court and spitting. What does ‘going nuts’ mean?” Gleason asked.
“You don’t think spitting on another human being is an act of aggression?” Gaughan asked.
