Van Dyke sentencing roundup
Friday, Jan 25, 2019 - Posted by Rich Miller
* AP…
The Illinois attorney general’s office has signaled it may be considering a rare sentencing-related appeal if it concludes that the less than seven years in prison a white Chicago police officer received in the killing of black teenager Laquan McDonald was wrongly calculated.
The office said in a brief statement emailed Thursday it is reviewing Jason Van Dyke’s sentence. With credit for good behavior, Van Dyke will likely serve only around three years for firing 16 bullets into McDonald in 2014. Dashcam video of the shooting released by the city in 2015 showed Van Dyke continued to fire as the 17-year-old crumpled to the street and lie on the ground. […]
One Chicago-based attorney Steve Greenberg, who has defended clients at more than 100 murder trials, said such appeals rarely succeed unless the sentencing judge’s error is egregious.
“From a logical standpoint, I think the sentence is correct,” he said. “From a legal standpoint, it might not be.” He added: “I think there is a fair chance the higher court would say the sentence was wrong.”
We’ve already discussed why the Supreme Court could very well strike down Van Dyke’s sentence.
* Sun-Times…
If the AG’s office were to intervene in the case, it would be unusual, but not unprecedented. The office has standing to intervene in nearly any criminal case, and if the AG is taking an interest in Van Dyke’s case, Raoul’s staff is likely looking for grounds to file what is known as a writ of mandamus, seeking to have the state Supreme Court rule that Van Dyke’s sentence violated state sentencing laws. […]
Any challenge would have to be based on an argument that [Cook County Judge Vincent Gaughan] made an error in sentencing Van Dyke, not just that Van Dyke’s sentence was not severe enough.
Gaughan’s sentence would seem a potential target, Richards said, not because it was shorter than some anticipated or hoped to see, but because Gaughan made an unusual— and possibly unlawful — decision on which counts Van Dyke was sentenced for.
Gaughan ruled that he had to sentence Van Dyke based on his conviction on a single count of second-degree murder, rather than on any of the 16 counts of aggravated battery with a firearm for which Van Dyke was also found guilty. Second-degree murder carries a sentence ranging from probation to a four- to 20-year prison term. Aggravated battery with a firearm carries a sentence of six to 30 years.
In court last week, Gaughan said he based his decision on a state Supreme Court ruling that said Van Dyke had to be sentenced based on the most-serious count of conviction, which Gaughan ruled was second-degree murder, not aggravated battery. But his ruling was based on a concurrence to that ruling issued by a single judge, rather than the order drafted by the majority of judges who ruled on the case, Richards said.
Emphasis added because it’s something I pointed out to you last week.
* And here’s a very telling passage from the Tribune story…
The shorter sentence prompted the defense to back off promises to appeal Van Dyke’s conviction out of concern that such a move could result in added prison time for the ex-officer.
Yep. Even the defense counsel apparently knows that the judge deciding this wrong.
* Judge Gaughan is no stranger to writs of mandamus…
In 2016, the state Supreme Court granted a writ ordering Gaughan to resentence a man convicted of aggravated criminal sexual assault, concluding the judge should have imposed an additional 15-year penalty enhancement.
* But as with every other aspect of law, you can always find attorneys who disagree…
More specifically, the state Supreme Court determined through its decision that aggravated battery with a firearm is a more serious offense than second-degree murder because of their respective sentencing ranges. The battery charges are Class X felonies carrying a six- to 30-year prison range. Second-degree murder is a Class 1 felony with a four- to 20-year range.
Darren O’Brien, a veteran attorney hired to handle Van Dyke’s planned appeal, disagreed with that reasoning. He cited more recent state Supreme Court cases in arguing that prosecutors cannot charge out a case in a way that “eliminates” second-degree murder by rolling it into other charges. Instead, he argued, Lee should not apply here and the charges should merge the opposite way, with second-degree murder as the more serious offense.
“The common sense answer to that would be the lesser harm merges into the greater harm,” he said. “The woundings merge into the death.”
- Moe Berg - Friday, Jan 25, 19 @ 10:00 am:
The judicial branch of government, especially at the state level, is the least transparent and least accountable. It takes heroic effort for voters to bounce a judge off the bench and almost never happens.
- Perrid - Friday, Jan 25, 19 @ 10:11 am:
“common sense answer” … so we should go with what our individual logic tells us, not the legal penalties lawmakers have associated with specific crimes? I don’t disagree with his logic, as I’ve said multiple times the penalty for killing someone should be worse than wounding, but that’s not what our lawmakers have decreed. We’ll see.
- @misterjayem - Friday, Jan 25, 19 @ 10:17 am:
As Dave Clarkin observed:
Curiously, the idea that an offender might be able to kill his way into a lesser sentence is so morally grotesque that I doubt any lawmaker ever felt a need to explicitly forbid it.
In the absence of such legislation, we’ll have to hope that mere Justice and Logic can carry the day.
– MrJM
- Ron Burgundy - Friday, Jan 25, 19 @ 10:21 am:
I do think Judge Gaughan misapplied the law in the sentencing. I also think current law on the interaction of aggravated battery and murder, and their respective sentences, is terribly flawed and needs to be fixed quickly.
- Donnie Elgin - Friday, Jan 25, 19 @ 10:31 am:
Political factors ….In this case we have all D’s in power at the city/county/state and legislative level. And perhaps most importantly a very powerful Chief Judge in Timothy Evans. We shall see is right !
- Wensicia - Friday, Jan 25, 19 @ 10:32 am:
“The common sense answer to that would be the lesser harm merges into the greater harm,”
I would argue the aggravated battery charges caused the greater harm, resulting in death.
- Keyrock - Friday, Jan 25, 19 @ 10:36 am:
This, and the verdict in the coverup case last week, highlight once again why we need to change the judicial selection process in Cook County from an elected process to an appointive one that promotes quality and diversity. Ed Burke and Mike Madigan have had too much control over the selection of judges — and their retention once selected.
Merit selection may not be politically possible while Madigan is still Speaker. But that time will come to an end and when it does, maybe the impossible can happen.
- TominChicago - Friday, Jan 25, 19 @ 10:45 am:
Keyrock. The judge who acquitted the 3 officers in the cover up case was essentially merit selected. As an associate judge, she was put on the bench by full circuit judges. And if you think merit selection would be non political, I would suggest you consider some of the incompetent political hacks Trump has put on the federal bench.
- Anon - Friday, Jan 25, 19 @ 10:48 am:
As Dave Clarkin observed:
“By the judge’s logic if you shoot someone 15 times committing aggravated battery but they are still alive, you should shoot them one more time to commit second degree murder so you walk on the 15 aggravated battery charges. That is a perversion of justice.”
Not really. Second degree murder in this case required that Van Dyke believed that the killing would have been lawfully justified but the belief was unreasonable. It is that mitigating factor that was found here, but would not likely be found in the hypothetical.
As to whether such a “mitigated” murder is more serious than and “unmitigated” aggravated battery with a firearm….hmmm.
- Rich Miller - Friday, Jan 25, 19 @ 10:51 am:
===she was put on the bench by full circuit judge===
That’s not merit selection.
- Keyrock - Friday, Jan 25, 19 @ 10:56 am:
TominChicago - Associate judges are elected by full Circuit Judges in a secret ballot, from a group of candidates screened by a group of presiding judges. It’s a process with no transparency, and is highly political.
Historically, lists have been distributed to the Circuit Judges who vote, with the list carrying the most weight reputedly coming from the Speaker.
The ballots are not publicly counted. Indeed, I’ve heard that some candidates and judges are not even convinced that the count is honest.
So no, associate judges are not appointed by a merit selection process.
Merit selection isn’t a panacea. But it would be a big improvement over our political system in Cook County.
- A Jack - Friday, Jan 25, 19 @ 10:58 am:
I personally think this became premeditated after he fired the first shot. The suspect was not shooting back or advancing with a knife toward anyone. The charge should have never have been lowered to second degree murder.
- Anon - Friday, Jan 25, 19 @ 10:59 am:
I get the arguments on the sentence, but taking a step back, does it even make sense that aggravated battery with a firearm is considered to be a more serious offense than murder?
And, that each shot is considered a separate offense that requires the terms to be served CONSECUTIVELY.
Gaughan is no dummy and he must have known what he was doing, and the potential for the writ. He may end up doing something different, if the writ is successful, but he’s going to make sure that there’s a whole lot of sunshine on the process, the law, the lawmakers, and the IL Supreme Court before it’s all said and done.
God help us all!
- Commonsense in Illinois - Friday, Jan 25, 19 @ 11:05 am:
Not being a lawyer, I’m a bit confused and hope someone can help me understand.
Emotion taken away, the prosecution submitted a sentencing report that included a recommendation for a suggested sentence. The court, after reading that, issues a sentence.
Now a third party enters the proceedings on the notion that the sentence wasn’t severe enough and may ask the court to re-sentence the defendant to a more sever penalty.
Why is this not double jeopardy? I realize the court can reduce a sentence, but I always thought that once sentenced, a defendant could not be hauled back into court on a whim to impose a more severe punishment, and this is something that goes back to the Magna Carta.
- W.S. Wolcott - Friday, Jan 25, 19 @ 11:14 am:
I believe the supremes tend give trial judges a good bit of deference on some of these issues. I spoke about a lot of this the day of the verdict that people would be disappointed at sentencing…
- Amalia - Friday, Jan 25, 19 @ 11:17 am:
the judge who acquitted the cops is the same judge who acquitted a kid who was accused of shooting at cops. look at her entire judicial record. she is fair. as for the sentence for Van Dyke, read the entire Tribune article. there are lawyers quoted in that article who don’t find the AG’s current study to be right under the law.
- Perrid - Friday, Jan 25, 19 @ 11:20 am:
@Commonsense, this line, “that the sentence wasn’t severe enough and may ask the court to re-sentence the defendant to a more sever penalty”
is not what the argument would be. The argument would be that the sentence was not in accordance with the law. The fact that the sentence would be more severe if it was in accordance with the law is irrelevant (obviously it is relevant politically, but not legally).
- Ron Burgundy - Friday, Jan 25, 19 @ 11:57 am:
The bar associations do some screening of associate judge candidates, and they do seem to have some impact with keeping some egregiously bad candidates off the bench. More impact than they have with voters, sadly.
- Perrid - Friday, Jan 25, 19 @ 11:58 am:
@Amalia, reading the judge’s 28 page reasoning for the acquittal proves she was looking for a reason to acquit. She ignores the video as inconclusive when the cops disagree with it (the video shows McDonald clearly going around the cops, avoiding them, when the cops all said he was attacking), and then says the video proves McDonald tried to get up after he hit the ground (again, not true. His legs don’t so much as twitch. His arms and shoulders do twitch a bit, possibly because he was still being shot). Ignoring the video when she wants and then saying the video proves what the cops say as she needs it to.
The acquittal might still have been correct, I don’t know, but just that tortured logic by itself proves she had decided to acquit, and then had to come up with a justification for it.
- @misterjayem - Friday, Jan 25, 19 @ 12:20 pm:
Darren O’Brien: “The woundings merge into the death.”
So six-to-30-years
plus six-to-30-years
plus six-to-30-years
plus six-to-30-years
plus six-to-30-years
plus six-to-30-years
plus six-to-30-years
plus six-to-30-years
plus six-to-30-years
plus six-to-30-years
plus six-to-30-years
plus six-to-30-years
plus six-to-30-years
plus six-to-30-years
plus six-to-30-years
plus six-to-30-years
equals four-to-20-years?
Got it.
– MrJM
- Amalia - Friday, Jan 25, 19 @ 12:20 pm:
@Perrid, as I wrote, she’s known to be fair. and since she acquitted an African American young man who was accused of shooting at cops, she seems to apply that approach generally.
- Perrid - Friday, Jan 25, 19 @ 12:37 pm:
I can’t speak to her other cases, I am only going by her written reasoning for her finding in this one case, and she both ignores the video at times and at others reads more into the video than is there, all to support her finding. And I agree when she says that she has to look at all the evidence, that just going off the video by itself would be wrong, but completely ignoring it when convenient and then using it to support statements that are simply not true when convenient makes it very, very difficult to give her the benefit of the doubt. But whatever, what’s done is done.
- jim - Friday, Jan 25, 19 @ 1:37 pm:
I hate to slow down this rush to judgment.
But where does our new publicity-seeking AG get his standing to intervene in a case that is not his to pursue?
Special prosecutor McMahon, who tried the case, can - and perhaps should — intervene.
Judge’s ruling raises an interesting legal issue, but not one Kwame will be able to address, IMHO.
- Rich Miller - Friday, Jan 25, 19 @ 1:39 pm:
===AG get his standing===
“The Attorney General shall be the legal officer of the State”