Special prosecutors and the Illinois attorney general's office want the state Supreme Court to order a resentencing for Jason Van Dyke, which, if granted, could result in a much harsher prison term for the former Chicago police officer convicted of killing Laquan McDonald.
Their petition, filed Monday, does not explicitly target the length of the 6-year sentence, which many activists criticized as lenient. But Kane County State's Attorney Joseph McMahon, appointed to handle the Van Dyke case, and Attorney General Kwame Raoul argue that Judge Vincent Gaughan sentenced Van Dyke under improper legal guidelines, and that a significantly longer sentence would be justifiable under state law.
"I recognize that a trial judge's discretion in sentencing is to be given great deference," Raoul said at a news conference Monday. "However, it is in the interest of justice that we do all within our power to make sure that such exercise in discretion be applied consistent with the mandates of law, no matter who the defendant and no matter who the victim."
Van Dyke's attorneys said the prosecutors' motivations were plainly political.
"This case has come to represent all the wrongs, perceived wrongs, of the Chicago Police Department, and it's fallen upon Jason Van Dyke as a person," attorney Jennifer Blagg said. "So what he represents politically is why this is happening."
While the sentence initially prompted the defense to back off from promises to appeal Van Dyke's conviction, Blagg said the prosecutors' petition forced their hand, and a notice of appeal was filed Friday.
"Jason and his family very much want to put this behind them," she said. "He has expressed that he doesn't want a new trial, he doesn't want to go through that again. He's not happy with being convicted, obviously, but the toll this has taken on his family is unbelievable."
Van Dyke, 40, was convicted last year of one count of second-degree murder and 16 counts of aggravated battery in the 2014 on-duty shooting of McDonald.
Gaughan sentenced Van Dyke only on the second-degree murder conviction, ruling that it was the more serious offense and that the aggravated battery counts should "merge" into it for purposes of sentencing.
"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 said from the bench before sentencing Van Dyke last month. "Common sense comes to an easy answer on that in this specific case."
But the prosecutors' petition argues that Illinois law actually makes aggravated battery with a firearm the more serious offense, and therefore the state Supreme Court should order Gaughan to resentence the ex-patrol officer on those convictions instead.
The court should also direct Gaughan to determine which of the 16 gunshot wounds caused "severe bodily injury" and sentence him to consecutive prison terms for those counts, they state.
Prosecutors have argued that at least two of the wounds caused that kind of injury, which, the petition contends, would mean Van Dyke would face a minimum sentence of 18 years: six years for each of those two wounds, plus six more years for the other 14 counts.
An aggravated battery with a firearm conviction carries a sentence of six to 30 years in prison. The range for second-degree murder is four to 20 years, but a judge can impose probation instead.
If the state Supreme Court chooses to consider the petition, there are a few potential outcomes, said longtime criminal defense attorney Mark Lyon.
"They will either have to say, 'Judge Gaughan, you have to resentence this person,' or they have to say (they) were wrong in the case where they said second-degree murder was always less serious than aggravated battery with a firearm," Lyon said, referring to a previous ruling.
The court could order Gaughan to resentence Van Dyke on the aggravated battery but not make him rule on which of the 16 shots caused "severe bodily injury," Lyon said. That would open the door for Gaughan to impose a prison term the same as the previous sentence, or slightly shorter.
But even in that scenario, Van Dyke would serve slightly more prison time. Inmates convicted of aggravated battery with a firearm must serve at least 85 percent of their sentences, compared with the 50 percent required by a second-degree murder conviction.
Van Dyke's attorneys plan to file an objection to the prosecutors' motion. The Supreme Court is not obliged to accept the prosecutors' petition at all and there is no specific time it must decide.
After the attorney general's office last month announced that it was conducting a "review" of the sentence, Van Dyke's trial attorney, Daniel Herbert, also called the decision politically motivated _ an allegation that Raoul said Monday was "nonsense."
"I'm not going to opine on my opinion on the length of the sentence. What I will opine on is whether or not the law should be followed, and I believe the law should be followed," he said.
McMahon, who had initially requested a term of 18 to 20 years in prison, said after the sentencing that he accepted the judge's decision.
On Monday, he said he is still satisfied with the sentence, but after considering the legal basis of Gaughan's ruling, he thinks the legal challenge is 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," he said. "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. 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 is the first Chicago police officer in half a century to be convicted of murder for an on-duty incident.
(c)2019 Chicago Tribune
