By Megan Crepeau and Jason Meisner
The Illinois Supreme Court decided Tuesday in a 4-to-2 vote that it will not order a new sentencing for Jason Van Dyke, rejecting an unusual bid from prosecutors that could have meant a much harsher prison term for the former Chicago police officer.
The court's rejection means Attorney General Kwame Raoul and Special Prosecutor Joseph McMahon likely have exhausted their only legal avenue to stiffen Van Dyke's sentence of 6 3/4 years in prison for Laquan McDonald's murder.
No explanation was given for the court's refusal to hear the case. But the decision fell largely along political lines, with the court's three Republicans -- Rita Garman, Robert Thomas, and Chief Justice Lloyd Karmeier -- joining together with Anne Burke, a Democrat who is married to Chicago Ald. Edward Burke, a onetime Chicago police officer who is facing federal corruption charges.
Two of the seven justices on the court, both Democrats, objected to the majority decision in full or in part, saying they believed Cook County Judge Vincent Gaughan improperly relied on a dissenting court opinion when he sentenced Van Dyke for a second-degree murder conviction, not aggravated battery with a firearm.
"The trial court's actions here were clearly improper as a matter of law," wrote Justice Thomas Kilbride in his partial dissent.
Justice P. Scott Neville Jr. agreed with Kilbride, writing in his full dissent that the court opinion on which Gaughan based his sentence was "the opposite" of the prevailing state law.
Prosecutors "raise compelling questions that merit additional briefing, argument, and consideration by this court," Neville wrote. "... This dispute clearly involves a matter of the utmost importance to the administration of justice."
Justice Mary Jane Theis, a Democrat, did not take part in the decision for unexplained reasons.
In a written statement, Van Dyke's lead trial attorney, Daniel Herbert, said he hoped the decision "will strike a fatal blow to the political exploitation of the death of Laquan McDonald."
"Our judicial system may not be perfect," Herbert said. "However, the bedrock of the system maintains that all defendants, including unpopular ones, are entitled to fair and impartial treatment. Jason Van Dyke is prepared to serve his debt to society and move on with his life in a meaningful and productive manner."
Reached by telephone, Jennifer Blagg, another Van Dyke lawyer, called the high court's decision "a strong acknowledgement that Judge Gaughan's sentence was proper and in accordance with the law."
A spokeswoman for Raoul's office was not immediately available for comment.
When he sentenced Van Dyke, Gaughan quoted from a dissenting opinion in an Illinois Supreme Court ruling that governs which convictions should "merge" for purposes of sentencing when someone is found guilty of both murder and aggravated battery.
"Is it more serious for Laquan McDonald to be shot by a firearm or is it more serious for Laquan McDonald to be murdered by a firearm?" Gaughan asked from the bench. "Common sense comes to an easy answer on that in this specific case."
The majority opinion from the case quoted by Gaughan, however, concluded the opposite.
Tuesday's decision by the Supreme Court means only one aspect of the criminal charges stemming from McDonald's 2014 killing remains pending -- Van Dyke's appeal of his conviction. Blagg said that his legal team is still awaiting trial transcripts before preparing its appellate brief.
A jury convicted Van Dyke, 40, in October of one count of second-degree murder and 16 counts of aggravated battery in the 2014 on-duty shooting of 17-year-old McDonald.
Due to security concerns, Van Dyke was recently transferred to a medium-security federal prison in Otisville, New York, an hour north of New York City. According to the U.S. Bureau of Prisons web site, he's scheduled to be released on Feb. 8, 2022.
Blagg said Van Dyke's legal team was trying to set up a call with Van Dyke later Tuesday to deliver the news.
A petition filed last month by the special prosecutors and the Illinois attorney general's office argued that Gaughan improperly sentenced Van Dyke on only his second-degree murder conviction.
Illinois law actually makes aggravated battery with a firearm the more serious offense, carrying a maximum prison sentence of 30 years, compared to 20 years for second-degree murder, the petition noted.
The petition also sought to direct Gaughan to determine which of the 16 gunshot wounds caused "severe bodily injury" and sentence him to consecutive prison terms for those counts.
Prosecutors have argued that at least two of the shots caused extensive injuries, making Van Dyke eligible for a sentence of up to 18 years in prison: six years for each of those two wounds, plus six more years for the other 14 counts.
After the attorney general's office last month announced it was conducting a "review" of the sentence, Herbert, Van Dyke's lead trial attorney, blasted the decision as politically motivated -- an allegation Raoul called "nonsense."
"I'm not going to opine on my opinion on the length of the sentence," Raoul said at the time. "What I will opine on is whether or not the law should be followed, and I believe the law should be followed."
Special Prosecutor McMahon, who had sought a prison term of 18 to 20 years for Van Dyke, told reporters after the sentencing in January that he accepted the judge's decision. He later said he was still satisfied with the sentence, but after considering the legal basis of Gaughan's ruling, he thought the legal challenge was appropriate.
"As we have had an opportunity to step back and kind of evaluate both the law and how the sentence was imposed, we have the benefit of some time and counsel in working with the attorney general's office," McMahon said last month. "I think the bigger message in this case is to make sure that the sentence that is imposed is a sentence that is lawful."
Van Dyke shot McDonald in October 2014 as the 17-year-old walked away from police on a Southwest Side street while holding a knife. Graphic police dashboard camera video of the shooting -- ordered released by a judge more than a year later -- sparked weeks of chaos and political upheaval, exacerbating the already fraught relationship between Chicago police and minority communities.
Van Dyke's monthlong jury trial last fall ended in a historic guilty verdict, making him the first Chicago police officer in half a century to be convicted of murder for an on-duty incident.
(c)2019 the Chicago Tribune