CHICAGO – Jason Van Dyke, the Chicago police officer facing murder charges for the controversial shooting death of Laquan McDonald, made the surprising decision Friday to have his case decided by a jury.
With the move, Van Dyke bucked the trend for officers facing serious charges who have favored having a judge – arguably more likely to understand the intricacy of law and seemingly less likely to be persuaded by dramatic or emotional testimony — decide their fate.
For months, defense attorneys complained that Van Dyke, who police video shows fired 16 shots at the 17-year-old black suspect, had been treated as a pariah in an avalanche of media coverage and that it was impossible for him to get a fair jury trial in Chicago.
But those concerns were set aside after cobbling together a jury panel that included a young Latina woman who is aspiring to be a Chicago cop, a gun rights proponent who relayed his “respect for officers,” and a stay-at-home mom who spoke positively of officers trying to “do their jobs.”
"The defendant will opt for a jury trial," said Daniel Hebert, Van Dyke’s lead defense attorney, during a brief hearing Friday.
Recent history – both in Chicago and around the country – suggests that police officers on trial in emotionally charged, high-stake cases have fared well by taking the bench trial route.
Of the 94 non-federal sworn law enforcement officers in the country who have been charged with murder or manslaughter in an on-duty shooting incident since 2005, 17 have been convicted by a jury, 16 have pleaded guilty, but none has been convicted by a judge, according to Philip Stinson, an associate professor of criminology at Bowling Green State University.
For the 42 officers whose cases ended in a non-conviction – 22 were acquitted at a jury trial, nine were acquitted at a bench trial, four saw charges dismissed by a judge, six saw charges dropped by a prosecutor, and in one instance a “no true bill” was returned after a grand jury found no probable cause to decide that a crime was committed, according to Stinson. Nineteen cases are still pending.
Van Dyke’s lawyers are still hoping that Judge Vincent Gaughan will agree at the last-moment to move the trial. The judge, however, said that he won’t rule on the change of venue until after all jurors are sworn in, which is expected to be completed on Monday.
The judge also told attorneys to prepare to give their opening statements Monday.
The racial composition of the jury includes seven white jurors, three Hispanics, one African-American and one Asian-American. Cook County, which includes the 5.2 million residents living in Chicago and inner ring suburbs, is 42.3 percent white, 25 percent Hispanic, 24 percent black and 7.7 percent Asian.
Van Dyke’s team used their first five peremptory challenges – an objection made to a juror without needing to state a reason – to excuse three black candidates, one Hispanic woman and a man who appeared to be of South Asian descent. The prosecution used peremptory strikes against three candidates, all who were white.
Prosecutors complained after one young black candidate was excused by the defense team that race was factoring in how Van Dyke's attorney's used the peremptory challenges. The defense team turned the tables on prosecutors after they excused a white juror who said he had friends in his neighborhood who are cops.
“This case isn’t about black or white,” assistant defense attorney Randy Rueckert said. “The press has made it about black and white, for gosh sake.”
Andrea Lyon, a Valparaiso University Law School professor and former Cook County public defender, noted that Van Dyke’s lead attorney, Herbert, was accused of excluding black jurors for a different on-duty Chicago police shooting case heard in federal court last year.
Hebert denied he was using race as a factor in picking that jury for the case – in which a Chicago cop was convicted of using excessive force for shooting 16 times at a moving vehicle driven by teens – but the judge in that cases refused to allow him to use a peremptory challenge to excuse an African-American man, who was selected to become the 12th juror.
“It’s very disturbing,” Lyon said. “It’s not typical of Cook County. Typically, you see better representation of minorities on juries.”
The case, one of several deadly confrontations with police throughout the country that’s spurred a larger conversation about policing in black communities, marks the first time since 1981 that a Chicago police officer has gone to trial on murder charges.
Van Dyke appears in the police video, which the city was forced to release by court order 400 days after the incident and on the same day he was charged, to shoot McDonald as he was walking away from police. Thirteen of the 16 shots were fired while McDonald, who was holding a small knife, was already on the ground.
Officers, including Van Dyke, were called to the area after receiving reports that McDonald, who had a history of metal illness and had PCP in his system, had been breaking into trucks. The teen slashed the tire of a police vehicle not long before he was shot on a city street. Van Dyke told investigators after the incident he acted in self-defense.
Van Dyke’s attorneys went to great lengths to make the case that finding an unbiased panel could not be done. The defense team commissioned a poll that found 98.5 percent of black respondents who had seen police dash cam video of the officer firing 16 shots at the black teen believed Van Dyke, who is white, was not in danger when he fired.
But with only one black juror among the 12 hearing the case (as well one African-American retiree picked among five alternates), the defense team’s concern is minimized.
Police officers in several recent high-profile use-of-force cases have been acquitted after deciding to seek bench trials.
•In February, New York City police Sgt. Hugh Barry was acquitted of murder, manslaughter and criminally negligent homicide in a bench trial for the fatal 2016 shooting of Deborah Danner, a mentally ill woman shot in her apartment.
•Last year in St. Louis, Judge Timothy Wilson found former police officer Jason Stockley not guilty on charges of first-degree murder and armed criminal action for the shooting death of Anthony Lamar Smith. The acquittal spurred violent protest in the Midwest city.
•In Baltimore, the 2016 acquittals in bench trials of three police officers charged in the controversial death of Freddie Gray, an African-American man who died of a neck injury while in police custody, flustered the local prosecutor. After the acquittals, Baltimore State's Attorney Marilyn Mosby dropped charges against three other officers involved in the incident and suggested Maryland laws change so prosecutors could have a say in whether defendants have a bench trial.
"There's a constitutional right to a jury,” Mosby told the Baltimore Sun. “You know, federally, they actually have the option – the prosecutor has to agree whether or not they're going to proceed on a bench trial. We don't have that option here, right, so our hands are tied."
In Chicago, where many judges were once state prosecutors who worked closely with police, defense attorneys for accused cops have found judges receptive to their arguments and not easily stirred by provocative testimony.
In late 2015, Cook County Judge Diane Gordon Cannon acquitted Chicago Police Cmdr. Glenn Evans for aggravated battery and official misconduct charges stemming from accusations he shoved his gun down a suspect’s throat and threatened to kill him.
Cannon, a former prosecutor, told the accuser, Ricky Williams, his testimony in court "taxes the gullibility of the credulous" and threw out the charges. Williams DNA was found on Evans’ weapon.
Months earlier, former Chicago police officer Dante Servin, who was off-duty when he shot into a small crowd of people after getting into an argument, saw his involuntary manslaughter charges for the death of 22-year-old Rekia Boyd thrown out by Judge Dennis Porter before his trial could even be completed.
Porter, a former prosecutor, said he found Servin not guilty of involuntary manslaughter because it was an improper charge. The judge said prosecutors should have charged the officer with a more serious offense, because Servin acted “beyond reckless” and could not be found guilty of involuntary manslaughter under the state statute.
In the Van Dyke case, Gaughan and defense attorneys have frequently clashed.
During the lead-up to the trial, Gaughan, 77, has been a stickler for following legal protocol and has frequently admonished Van Dyke’s attorney, Herbert, for missteps.
But he also showed a measure of leniency with Van Dyke earlier this month, when the special prosecutor in the case argued for the officer’s bail to be revoked or raised after he gave media interviews despite a gag order prohibiting him from doing so.
Gaughan agreed that Van Dyke violated a term of bail conditions, which required him to follow all court orders, including the gag order, but he only made the officer add $200 to the $150,000 he’d already posted.
Lyon, the former public defender, noted the political tumult the case has already caused may have factored into the Van Dyke's team's decision to go with a jury trial. The former county prosecutor was ousted at the polls in the months after the release of the video, the police superintendent was fired, and Mayor Rahm Emanuel (who announced earlier this month he won't seek a third term in office) saw his standing in the city's black community plummet.
In Cook County, judges are elected officials.
“The political pressure would be enormous, and if he’s hoping for an acquittal ... taking a bench trial is not going to make that happen," Lyon said.
Gaughan also had his own confrontation with police when he was a young man recently returned to Chicago as a decorated Vietnam War veteran, according to the Chicago Tribune.
In April 1970, Gaughan was charged with aggravated assault, unlawful use of a weapon, failure to register a weapon, and discharging a firearm in the city, according to the paper’s account soon after the incident.
It was unclear how the case was disposed of, but the Tribune’s account detailed how police officers showed extraordinary restraint in the incident that started when Gaughan allegedly fired a weapon from his parent’s home and shattered windows of his neighbor’s house.
When police arrived at the scene to interview the neighbor couple, Gaughan fired two more shots that pierced the dining room.
It’s unclear why Gaughan fired the weapon (the judge has declined to comment and the Cook County Circuit Court doesn’t have records of the 48-year-old case). But his father told the newspaper at the time that Gaughan had been agitated and was having trouble adjusting to civilian life after returning from the war.
When police officers arrived at Gaughan’s house, he was locked away in his room and said he wanted to talk to a priest. When the priest arrived, he reportedly said: "Wait, I want a policeman to come too. An Irish sergeant."
The incident was defused, and Gaughan was taken into custody.