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Did the Van Dyke trial judge make a mistake?

Monday, Sep 24, 2018

* From the Jason Van Dyke trial…

* The Illinois Supreme Court ruling in People v. Lynch is being used to bring Laquan McDonald’s past into the Van Dyke trial. An excerpt

We hold that when the theory of self-defense is raised, the victim’s aggressive and violent character is relevant to show who was the aggressor, and the defendant may show it by appropriate evidence, regardless of when he learned of it.

* Zorn

What we do have is dash-cam video that leaves no doubt that Van Dyke was advancing on McDonald with his gun drawn as McDonald angled away from him — images that turned this case from a routine police shooting to an international sensation.

“I don’t see how there can be an argument that McDonald was the aggressor, which is the threshold claim for allowing the introduction of Lynch material,” said Jeffrey Urdangen, director of the Bluhm Legal Clinic’s Center for Criminal Defense at the Northwestern Pritzker School of Law. “There’s no interpretation of the known facts in which you can argue that there’s a dispute.”

“The video blows out of the water any contention that McDonald was coming at Van Dyke,” said Chicago-Kent College of Law professor Richard Kling, a former public defender. “And when you plead self-defense, you can’t be the one who started the fight.”

McDonald’s troubled and troubling past is irrelevant to the question of whether Van Dyke was justified in shooting him down like a dog.

- Posted by Rich Miller        

38 Comments
  1. - 47th Ward - Monday, Sep 24, 18 @ 2:16 pm:

    I’m not a lawyer but it sure seems like, unless the defense can show that Van Dyke was aware of McDonald’s past violent actions before he shot him 16 times, then none of this should be included in the trial.

    Van Dyke’s state of mind is important to the outcome of the trial, but again, unless he knew about this stuff before he shot him, it’s irrelevant and victim-blaming. I hope the jury sees through it.


  2. - Keyrock - Monday, Sep 24, 18 @ 2:23 pm:

    It’s the Cook County Circuit Court. It’s a lot like Chinatown, Rich.

    Secret pretrial hearings. Unusual jury composition. Well-timed favorable rulings. Yeah, a mistake is possible.


  3. - Chicago Cynic - Monday, Sep 24, 18 @ 2:28 pm:

    This thing is really beginning to stink.


  4. - Last Bull Moose - Monday, Sep 24, 18 @ 2:29 pm:

    I thought the narrative was that McDonald was being pursued because of violent acts just prior to the shooting. If my memory is correct, those acts open the door for this.


  5. - Dee4Three - Monday, Sep 24, 18 @ 2:30 pm:

    It isn’t a Cook County specific thing. You can put this evidence on statewide, even if the Defendant didn’t know about it.

    The difference here though is that this evidence is typically put in when the case is a he said/she said where the jury is trying to figure out who the aggressor is.

    The video clears that up for the jury.


  6. - Perrid - Monday, Sep 24, 18 @ 2:30 pm:

    That’s circular, isn’t it? You/Zorn are saying that it is clearly not self-defense, therefore Van Dyke should not be able to argue that it was self defense, meaning he can’t “prove” it was self defense? I agree it wasn’t, the tape is pretty clear on that, but you’re putting the cart before the horse here. Let him make the argument, and let the jury (hopefully) ignore it.


  7. - Not Rich - Monday, Sep 24, 18 @ 2:31 pm:

    If this trial goes “south” watch out!!!


  8. - Dee4Three - Monday, Sep 24, 18 @ 2:38 pm:

    The question isn’t whether Van Dyke should be able to claim self-defense, the question is whether Van Dyke should be able to put on prior bad acts in an attempt to inform the jury what might have happened that night in support of his self-defense claim

    Zorn is arguing we don’t need that extra historical evidence b/c the video speaks for itself.


  9. - Amalia - Monday, Sep 24, 18 @ 2:42 pm:

    pursuing a person with info that there is problems with his current actions. AND the police officer who testified for the prosecution that the video did not show totally what they experienced. sounds like the door is open for the record of the person pursued, now deceased. and that is this case. remember, in the Michael Brown case, despite the “hands up don’t shoot” narrative, that case started with Michael Brown taking things from a convenience store and roughing up the staffer in there. that had an effect on that case despite the activists claims that he was doing nothing wrong.


  10. - Been There - Monday, Sep 24, 18 @ 2:42 pm:

    ====“I don’t see how there can be an argument that McDonald was the aggressor, which is the threshold claim for allowing the introduction of Lynch material,” ===
    I’m not buying Van Dykes defense but this statement above shows such obvious bias against him. McDonald had a knife in his hand and as stated he was aggressive before this. And we don’t know what McDonald may have been saying / yelling at Van Dyke. Again I’m not agreeing with Van Dykes version but you just can’t throw the book at him without allowing a defense.
    To open another rabbit hole I believe his attorney will slow the tape down and try and make a case that he did take a slight step toward Van Dyke.


  11. - Matt Vernau - Monday, Sep 24, 18 @ 2:47 pm:

    This thing has stunk since that video hit the internet. There is not a lot good to say about the victim…but police training and procedure went out the window. There were enough police on hand to corral/surround this kid and hit him with a billy club or mace. He was armed only with a knife and moving away making even the first shot very suspect and then the shooter empties his gun. I think we can trust the jury on this. If this officer walks….funding for Black Lives Matter will increase exponentially.


  12. - DuPage Saint - Monday, Sep 24, 18 @ 2:57 pm:

    I have read various accounts that says the video does not speak for itself. That in fact it is a fish eye lens and distorts the actions. If that is so then that is critical
    If the prosecutors made statements as to the victims character then prior bad acts could come in but I don’t think they did that so I don’t see relavance unless police knew of it before shooting


  13. - dbk - Monday, Sep 24, 18 @ 2:57 pm:

    The WBEZ - Tribune podcast series “16 Shots” is very good, if anyone is interested.

    I just watched the video for the first time last weekend - Laquan wasn’t the aggressor, it looked to me like he was dazed and confused (PCP was found in his system).

    Sixteen shots in 14.6 seconds, one minute before the back-up with a taser arrived on the scene.

    The only person who approached him as he lay dying was a Sheriff’s officer.


  14. - In 630 - Monday, Sep 24, 18 @ 3:00 pm:

    The mistake is that this is what the law in Illinois allows. It’s ridiculous just on the face of it that a self defense argument can involve showing evidence of behavior the accused didn’t know anything about.


  15. - wordslinger - Monday, Sep 24, 18 @ 3:15 pm:

    – It’s ridiculous just on the face of it that a self defense argument can involve showing evidence of behavior the accused didn’t know anything about.–

    Indeed.


  16. - Lester Holt’s Mustache - Monday, Sep 24, 18 @ 3:21 pm:

    ==Secret pretrial hearings. Unusual jury composition. Well-timed favorable rulings. Yeah, a mistake is possible.==

    Assuming that this was a “mistake” might be another mistake. Multiple Chicago police officers have been cleared thanks to friendly court rulings. Shooting into crowds, shooting into moving vehicles, shooting folks walking away from them - none of the circumstances seems to matter once these cases get in front of a cook county judge. Robert Rialmo and Dante Servin both walked, Van Dyke probably will too.


  17. - #1 anon - Monday, Sep 24, 18 @ 3:25 pm:

    I’ll defend the Supreme Court’s ruling as useful. If the question is which of two people was the aggressor, then the alleged violent character of the victim raises the likelihood that the victim was actually the aggressor. That is entirely reasonable.


  18. - #1 anon - Monday, Sep 24, 18 @ 3:27 pm:

    As to the application here, Perrid is exactly right. The jury is entitled to consider this evidence (per the Supreme Court) and consider it against video evidence and eyewitness testimony. Zorn begs the question by skipping to his preferred answer. But that is why we have a jury.


  19. - Precinct Captain - Monday, Sep 24, 18 @ 3:37 pm:

    If Laquan’s background is fair game, Van Dyke’s should be too. Van Dyke is a violent, nasty person, unfit for any form of public service. Van Dyke’s first instincts are to perform violence on others. Recall Van Dyke’s violent attack on a man, ripping tendons and even a rotator cuff in a man’s shoulder, costing this man tens of thousands of dollars in lost wages and medical bills. Sickening.

    http://www.chicagotribune.com/news/ct-police-shooting-16-shots-04—met-20150425-story.html


  20. - Name/Nickname/Anon - Monday, Sep 24, 18 @ 3:39 pm:

    Don’t forget he just put the knife to the windshield of a car, with cops in it. He approaches officers, pulls a knife, then refuses to drop it. Pretty clear evidence of at least some type of aggression.

    He could’ve easily have thrown the knife at the officers from 12 feet away.

    How can you say there’s ‘no evidence’ of aggression?


  21. - 19th Ward Guy - Monday, Sep 24, 18 @ 3:44 pm:

    Entirely reasonable ruling and In the future would be nice if Zorn balanced his legal analysis with input from legal scholars and former prosecutors who are less biased.


  22. - Politix - Monday, Sep 24, 18 @ 3:56 pm:

    “He could’ve easily have thrown the knife at the officers from 12 feet away.”

    He wasn’t a ninja….


  23. - Anonymous - Monday, Sep 24, 18 @ 4:00 pm:

    He wasn’t a ninja….

    I thought background was irrelevant?

    It’s entirely plausible to be killed with a knife from a distance. Bottom line is, he pulled a deadly weapon on officers. There’s a prima facia showing of aggression.


  24. - lowdrag - Monday, Sep 24, 18 @ 4:08 pm:

    I haven’t seen anything on why the other officers didn’t fire their weapons?


  25. - Name/Nickname/Anon - Monday, Sep 24, 18 @ 4:12 pm:

    Unfortunately, the law doesn’t say all officers who are legally authorized to use deadly force must use deadly force or the one who does is guilty of 1st degree murder.


  26. - Lester Holt’s Mustache - Monday, Sep 24, 18 @ 4:25 pm:

    ==He could’ve easily have thrown the knife at the officers from 12 feet away==

    Of course, so why not shoot the kid 16 times if there is the slightest chance that he might throw a knife? Name/Nickname is right, cops should just shoot everyone holding a knife 16 times. I applaud your excellent use of logic, and agree with your stance that restraint never be shown by police when dealing with these highly trained, extremely dangerous knife-wielding teenagers.


  27. - Wensicia - Monday, Sep 24, 18 @ 4:27 pm:

    The defendant didn’t have any knowledge of McDonald or his history before to the shooting. Is it the defense’s contention that any prior act of violence by the victim, unknown to the aggressor, is justification for homicide?


  28. - Name/Nickname/Anon - Monday, Sep 24, 18 @ 4:33 pm:

    The question we are debating is whether there’s a showing of aggression such that to allow the character testimony.

    The question, overall, is not whether he “should’ve” used deadly force, the question is whether he was legally authorized to.

    And that is not a foregone conclusion, either way.


  29. - wondering - Monday, Sep 24, 18 @ 4:48 pm:

    Kick it around, paint it red, 16 shots is intent to kill, not defend nor subdue. The defense is so weak they argued 14 shots didn’t matter because he was dying from 2 of 16. And, didn’t bleed much.


  30. - Name/Nickname/Anon - Monday, Sep 24, 18 @ 4:50 pm:

    Wondering, he isn’t legally required to subdue when faced with the threat of death or serious bodily harm.


  31. - wondering - Monday, Sep 24, 18 @ 5:44 pm:

    Name, I don’t know that I said he was legally required. How much of a death threat after, say, the first 8? 9? 10? You shoot someone or something 16 times you are intending to kill.


  32. - Three Dimensional Checkers - Monday, Sep 24, 18 @ 5:52 pm:

    I think it’s pretty ironic that 19th Ward Guy thinks that the defense attorneys are biased when discussing an affirmative defense. That’s kind of their wheelhouse.


  33. - Anonymous - Monday, Sep 24, 18 @ 6:26 pm:

    This is just my point; the law doesn’t fit the crime, pure and simple.

    There needs to be legislative movement on this issue. Excessive (Deadly) Force by a Police Officer.

    First degree murder just doesn’t fit.


  34. - Name/Nickname/Anon - Monday, Sep 24, 18 @ 6:26 pm:

    ^ my comment.


  35. - Generation X - Monday, Sep 24, 18 @ 8:12 pm:

    Question Name/Nickname/Anon

    You want a legislative change to deadly force. What would that look like? Self Defense is not an available to Cops charged with murder? Along with the numerous Due Process and Equal Protection problems that brings, you are essentially advocating guilt for every cop charged with murder.


  36. - West Side the Best Side - Monday, Sep 24, 18 @ 8:39 pm:

    Sorry, Eric, let the jury decide the case on the evidence heard and seen in the courtroom after listening to the arguments of the lawyers and the instructions on the law given by the judge. That is the way our system of law works. We all know the protesters don’t believe that’s the way it should be, but shouldn’t a newspaper columnist be more responsible?


  37. - Anonymous - Monday, Sep 24, 18 @ 8:48 pm:

    Generation X,

    No, no change to deadly force. The defense would be the same–the charges would be different.


  38. - Name/Nickname/Anon - Monday, Sep 24, 18 @ 8:49 pm:

    Easier to convict and easier to defend.


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