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How Jason Van Dyke’s projected 96-year sentence wound up being 81 months

Friday, Jan 18, 2019

* The Chicago Daily Law Bulletin just reposted an October 10, 2018 op-ed by Cook County assistant public defender David C. Holland claiming that Chicago police officer Jason Van Dyke could wind up serving as many as 96 years in prison due to a “quirk” in Illinois statutes and case law.

We’ll get to the column after this news report from ABC 7

Jason Van Dyke, the Chicago police officer convicted of murdering 17-year-old Laquan McDonald, was sentenced to 81 months, or 6 years and 9 months, in prison and two years mandatory supervised release. […]

Van Dyke was found guilty of second-degree murder and 16 counts of aggravated battery.

Judge Vincent Gaughan said he considered the most serious charge to be the second degree murder charge, not the 16 aggravated battery charges, and made his sentencing decision on that murder charge.

The special prosecutor argued that aggravated battery with firearm was the more serious of the crimes of which Van Dyke is convicted and should be sentenced consecutively on those charges instead of the second degree murder charge, which carries a lesser sentence.

* According to Holland’s October op-ed, the special prosecutor was right

Second-degree murder, on the other hand, is punishable anywhere from probation to 20 years in prison with possible release after 10 years. Moreover, committing second-degree murder with a firearm does not require an extra sentence of 25 years to natural life as a first-degree murder does. […]

By a quirk of Illinois law, Van Dyke may face a mandatory minimum sentence as high as 96 years.

This is because the prosecution charged each gunshot as a separate offense of aggravated battery with a firearm, and each shot holds a minimum sentence of six years in prison.

Illinois’ sentencing statute, however, requires that the sentence for any Class X felony (such as aggravated battery with a firearm) that causes “severe bodily injury” be served one after the next (consecutively).

Thus, if Judge Gaughan finds that each shot caused severe bodily injury, he would be required to sentence Van Dyke to a minimum of 96 years in prison (16 multiplied by six). If the judge finds that only 10 of the 16 shots severely injured McDonald, the minimum sentence would be 60 years, and so forth.

Moreover, even though the shooting and the murder are the same physical act, Illinois case law requires Judge Gaughan to sentence Van Dyke on the aggravated battery charges, not the second-degree murder, on the counterinstinctual holding that aggravated battery with a firearm is more “serious” than second-degree murder (even when murder is the ultimate result of the gunshot wounds).

Judge Gaughan, instead, didn’t even sentence Van Dyke on the aggravated battery with a firearm charges, rolling them into the 2nd degree murder charge.

* Here’s the case law that Holland pointed to. From the Illinois Supreme Court’s 2004 opinion in People v. Lee

It is common sense that the legislature would provide greater punishment for crimes it deems more serious. Here, the legislature has classified aggravated battery with a firearm as a Class X felony with a possible sentence of 6 to 30 years. Second degree murder is a Class 1 felony with a possible sentence of 4 to 20 years. Therefore, in line with Duszkewycz, the second degree murder conviction, as the less serious offense, should have been vacated. […]

In sum, the appellate court erred in concluding that the more serious offense in this case was second degree murder simply because the court opted to impose a greater prison sentence on that count. Instead, aggravated battery with a firearm is the more serious offense, and defendant’s conviction for second degree murder must be vacated.

* Judge Gaughan apparently agreed with the dissent in that case

Given this reality, it is simply impossible to say categorically, as the majority does, that all aggravated batteries are more serious than all second degree murders as a matter of law. Indeed, had the legislature felt this way, it would have created mutually exclusive sentencing ranges, with the maximum sentence for second degree murder falling somewhere below the minimum limit for aggravated battery with a firearm. But this is not what the legislature did. On the contrary, it created broad and largely overlapping sentencing ranges, leaving it to the trial court’s discretion to evaluate and ascertain the seriousness of these and other offenses on a case-by-case basis. Accordingly, I would look to the sentences actually imposed in a given case when identifying the most serious offense. […]

The bottom line is that, in this case, the trial court clearly believed that this particular second degree murder was more serious than this particular aggravated battery with a firearm. The legislature specifically allowed for this result, and I see no compelling reason to set it aside. I therefore dissent on this point.

Some thought should be given to appealing Van Dyke’s sentence.

- Posted by Rich Miller        

  1. - Three Dimensional Checkers - Tuesday, Jan 22, 19 @ 9:27 am:

    Can the state even appeal a criminal sentence? I know they cannot appeal a verdict.

    Also, it was Justice Thomas who wrote the dissent in Lee not Justice Garman.

  2. - PC - Tuesday, Jan 22, 19 @ 9:30 am:

    As Rich notes, Judge Gaughan violated the rule set in the Illinois Sup Ct case, People v. Lee, 213 Ill 2d 218 (2004), which prohibited him from merging the 16 aggravated battery/firearm counts into the less serious conviction for second degree murder. In every way, aggravated battery is the more serious offense: it’s a Class X not a Class 1, has a range of 6-30 rather than 4-20, requires a defendant to served 85% rather than 50% of his sentence (meaning its true maximum is 25 years, versus only 10 years for second degree), and it has a longer parole term.

    We can’t have a system where Van Dyke gets to serve an unlawful, lenient second degree murder sentence while Mr. Lee, and others like him who don’t have any money or political capital behind them, have to serve the more serious sentence actually required by the law.

    In another situation where Judge Gaughan imposed an illegally low sentence, on a defendant named Castelberry, the State filed a writ of mandamus in the IL Sup Ct to force Judge Gaughan to impose the correct, harsher sentence. Unlike here, that case did not involve a purposeful violation of the law, but simply a legal error. To make matters worse, Castleberry had been sentenced in 2010, but the error in his sentence did not become clear until the law was clarified three years later, in 2013. Nonetheless, because the error was clear, the Supreme Court granted the writ of mandamus in 2016 – six years after Castleberry was originally sentenced – and ordered Judge Gaughan to increase the sentence by 15 years. People ex rel. Alvarez v. Gaughan, 2016 IL 120110, ¶ 34.

    There is only one legitimate option here. The special prosecutor or Kwame Raoul must appeal or seek mandamus of Judge Gaughan’s purposeful, illegal order. That is what the State did in Castleberry, and that is what the State would do here for any other criminal defendant. At the very least, if the State is not going to treat Van Dyke like it’s treated every other criminal defendant up to this point, then it should afford other prisoners, beginning with Mr. Lee himself – who is still incarcerated – the relief Van Dyke got from Judge Gaugan.

    Finally, it might be asked how we got here if the law is so clear. From what I can tell, defense counsel Darren O’Brien argued to the judge that People v. Lee did not apply. Mr. O’Brien is a former prosecutor who has written a sentencing handbook. Notwithstanding what Mr. O’Brien told Judge Gaughan, his book is very clear on what People v. Lee held: “P. v. Lee, 213 Ill 2d 218 (2004) (which held that Aggravated Battery/Firearm is a higher class than 2nd Degree Murder involving the same victim and, therefore, only a sentence on the Aggravated Battery/Firearm is appropriate).” Darren O’Brien, Quick -Reference Guide To Sentencing and Bond Hearings in Illinois p.29 (2013) available at’brien%20february%207%202013%20sent%20guide.pdf

    If Mr. O’Brien thinks Lee was wrongly decided and wants to challenge it, that’s great, but it doesn’t change the fact that Judge Gaughan was bound to follow Lee. The only legitimate way to challenge Lee is for Judge Gaughan to sentence Van Dyke on aggravated battery with a firearm as required by Lee, and then for Van Dyke to raise these arguments in his appeal. That way, if he is successful, the new rule will apply to and benefit all defendants, not just Van Dyke.

  3. - Perrid - Tuesday, Jan 22, 19 @ 9:33 am:

    Google tells me that the prosecution appealing a sentence is very rare, and the sentence can only be increased if the original sentence was flat out illegal. Otherwise double jeopardy applies. I’m not sure if the sentence is flat out wrong/illegal, and I’m really not sure the prosecution is interested in having that fight.

  4. - Perrid - Tuesday, Jan 22, 19 @ 9:35 am:

    Also, regardless of what the law says, it seems weird to me that shooting someone is worse than second degree murder. That’s equivalent to saying shooting someone in the shoulder is worse than stabbing someone in the throat. It makes no sense. But whatever, that’s what’s on the books.

  5. - JoanP - Tuesday, Jan 22, 19 @ 9:37 am:

    Yes, the prosecution can appeal the sentence.

    =The special prosecutor or Kwame Raoul must appeal=

    The Attorney General’s Office is not a party to the case. It’s up to the special prosecutor.

  6. - Three Dimensional Checkers - Tuesday, Jan 22, 19 @ 9:50 am:

    I agree that Lee would seem to undercut the sentence, but one case does not make an appeal. You really have to survey all the case law on merger to have a good idea of the law in this area and prospects for appeal. There are definitely many times where a case that seems totally binding is not as strong when you place it in the full context of all the case law.

  7. - Anonymous - Tuesday, Jan 22, 19 @ 10:14 am:

    Without any legal analysis, many including myself were disappointed with the sentence.

  8. - PC - Tuesday, Jan 22, 19 @ 10:40 am:

    The attorney general can file a mandamus, and if he chooses not to he should explain why. If he thinks Lee should be overruled, he should say so in order that other defendants may be treated equally under the law.

  9. - wondering - Tuesday, Jan 22, 19 @ 10:59 am:

    -Some thought should be given to appealing Van Dyke’s sentence.- For sure. No matter the perspective,fair or unfair, the sentence needs to be legitimized or overturned. It will be a festering wound on the community conscience until it is.

  10. - wordslinger - Tuesday, Jan 22, 19 @ 10:59 am:

    Rich and PC, thanks for the informed insight.

    Gaughan did a lot of acrobatics to land where he did.

  11. - Three - Tuesday, Jan 22, 19 @ 11:02 am:

    PC is correct: although there may be some unsettled law as to the State’s ability to file a mandamus to challenge an erroneous one-act, one-crime finding, AG should publicly explain why they are not doing so.

  12. - JoanP - Tuesday, Jan 22, 19 @ 1:25 pm:

    Please will you all stop conflating “the State” with “the Attorney General’s Office”. This is a prosecution by Cook County, represented by a special prosecutor. If anyone should file a mandamus, it is he.

    =Google tells me=

    Well, now there’s an authority. Come on, you can’t really be serious. All “Google” does is give you a slew of different websites, not all of which may have accurate information.

  13. - PC - Tuesday, Jan 22, 19 @ 2:15 pm:

    The AG can file a mandamus. The cases cited in People ex rel Alvarez v. Gaughan show this clearly. The AG has a duty to defend Illinois law, and this duty cannot be defeated by a special prosecutor who, for some reason, wants to let an illegal sentence stand.

Sorry, comments for this post are now closed.

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