By Steve Schmadeke
In a surprise change of heart, Cook County State's Attorney Anita Alvarez dropped her opposition Thursday to a special prosecutor in the killing of Laquan McDonald and said her office would withdraw from the bombshell case.
Alvarez denied her office had a conflict of interest as critics had alleged in calling for a special prosecutor, but she said her recusal was "the best and most responsible decision" because of her resounding re-election loss in the Democratic primary in March.
With Alvarez set to leave office after the November general election, she said a special prosecutor would "provide continuity in the handling of this very important and complicated case."
In seeking a special prosecutor, a coalition of Alvarez critics, attorneys and community groups had accused the state's attorney of having a cozy relationship with the Chicago police union, creating a conflict of interest that should disqualify her from prosecuting Officer Jason Van Dyke in McDonald's killing.
Kim Foxx, who made Alvarez's handling of the McDonald killing the centerpiece of her winning primary campaign against the incumbent, applauded Alvarez's move, saying in a brief statement that "this is clearly the appropriate decision in this case."
Later Thursday, Van Dyke's lawyer issued a statement calling on Alvarez to reduce the first-degree charges, saying she had "overcharged and exploited" the case "in an attempt to win her re-election."
"The husband and father of two young children now faces a minimum of 45 years in prison if convicted because he was sacrificed as a political pawn in an unsuccessful attempt to save someone's career," said attorney Daniel Herbert.
During the campaign, Alvarez had rejected calls that an outside prosecutor be appointed to handle the high-profile case. At the time, she called the timing of the coalition's request just weeks before the hard-fought primary "more than a little coincidental."
The dashboard camera video of Van Dyke shooting McDonald has caused a crisis for the city and Police Department, leading to calls for major reforms amid a U.S. Justice Department investigation of police practices.
The McDonald shooting took place in October 2014, but the officer wasn't charged until late November 2015, hours before a judge ordered the release of police dashboard-camera video that showed Van Dyke shooting McDonald 16 times as he walked away from police with a knife in his hand.
Alvarez said she had decided to charge Van Dyke weeks earlier but was hoping to do so at the conclusion of both her work and that of federal authorities, who are still probing whether officers engaged in a cover-up at the scene that night. When she learned the video would be released, she decided to act earlier in "the interest of public safety," she said at the time.
On Thursday, after prosecutors revealed in court her change of heart on the special prosecutor, Alvarez issued a statement saying she believed "that the results of the recent election and the impending transition of this office make this the best and most responsible decision."
The coalition of some 25 community groups, prominent attorneys, a member of McDonald's family and some of Alvarez's biggest critics had filed the petition seeking a special prosecutor be appointed to not only investigate McDonald's shooting but also police officers whose reports contradicted what the video showed.
Their petition also alleged that Alvarez failed when it came to charging police officers who committed crimes and that when her office brought cases, the trials were often botched.
The Rev. Jesse Jackson also filed a separate petition seeking the appointment of a special prosecutor in the Van Dyke case. He, too, pointed out the alleged conflict of interest and said that the public's trust in her office was at a low point.
Judge Vincent Gaughan, who is presiding over the Van Dyke case, must still approve Alvarez's recusal.
In court Thursday, Assistant State's Attorney Alan Spellberg said if Gaughan opts to appoint a special prosecutor, the law requires that the judge first reach out to the attorney general's office and the Illinois office of the state's attorney appellate prosecutor to see if they have attorneys available to take on the case.
Locke Bowman, an attorney who represented the coalition seeking a special prosecutor, told reporters he hopes neither agency will handle the prosecution, saying both historically have been closely aligned with Cook County prosecutors in their reluctance to prosecute police officers.
Legal experts said Gaughan is free to appoint any competent private attorney he desires. The county will pick up the tab for the special prosecutor, even if Gaughan appoints the attorney general's office, a Cook County spokesman said.
In court, Bowman asked the judge for the opportunity to suggest a slate of possible lawyers to be appointed as special prosecutor. The judge said he would hear such proposals June 2.
"The decision about how to proceed forward after the recusal is just as important as Alvarez's decision to recuse," Bowman told reporters later in the lobby of the Leighton Criminal Court Building. "This prosecution needs to be handled superbly, it needs to be handled with fairness, it needs to be handled with a view not just to doing justice with respect to Mr. Van Dyke but also with respect to other officers who were involved in the cover-up."
Bowman said he was not yet prepared to name any candidates but that the judge should appoint "a person of stature, great integrity and fierce prosecutorial zeal."
G. Flint Taylor, another attorney involved in seeking a special prosecutor, said the lawyer "needs to be from, and responsive to, the community."
A spokeswoman for Attorney General Lisa Madigan said the office could not comment on the matter.
The attorney general's office is rarely called upon to prosecute major criminal cases but is currently handling the downstate prosecution of convicted killer Drew Peterson, a former Bolingbrook police sergeant, on charges he put out a hit on Will County State's Attorney James Glasgow.
Earlier Thursday, Herbert, Van Dyke's lawyer, said he was ambivalent about a special prosecutor being appointed.
"We're going to be ready to try the case no matter who's on the other side of the courtroom," he said.
Herbert said he expects the case to go to trial next year, even with delays while a special prosecutor is appointed.
Whoever is appointed to prosecute the case will have to get up to speed with a sprawling court file encompassing thousands of pages of documents.
Herbert said in court that federal authorities recently turned over some 10,000 pages of material from their ongoing investigation into McDonald's killing.
Also Thursday, Judge Gaughan said he has privately worked out a plan to ensure Van Dyke's safety as he enters and exits the county's main criminal courthouse for appearances on his case.
Gaughan said he held an unannounced meeting last week with prosecutors, Van Dyke's lawyer and sheriff's officials at which the group hammered out an unspecified "security plan."
"It's unconscionable that we would compel an individual to appear at a court date without ensuring his security," Gaughan said. "Mob rule will not happen in this courtroom."
Since he was charged in November in the on-duty killing, Van Dyke has had to maneuver through rowdy protests outside the courthouse during several early court appearances.
No protesters were on hand outside the courthouse Thursday or at his previous appearance.
Herbert asked a judge in March to allow Van Dyke to skip routine court appearances, citing concerns about his safety because of public protests outside the courthouse over the high-profile case. Van Dyke, who has been suspended without pay, is free on $1.5 million bond while awaiting trial.
But in his latest filing, Herbert also suggested that sheriff's deputies guard the officer as he enters and exits the courthouse on Chicago's Southwest Side.
Prosecutors have said the judge should not allow Van Dyke to skip court, arguing that to do so would create a perception of preferential treatment and create a "slippery slope" for other defendants in highly publicized cases. But in their court filing last month, prosecutors suggested Gaughan could order sheriff's deputies to protect Van Dyke when protesters are present or allow him earlier access to the courthouse than the general public.
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