Capitol Fax.com - Your Illinois News Radar » Supreme Court denies Van Dyke resentencing bid
SUBSCRIBE to Capitol Fax      Advertise Here      Mobile Version     Exclusive Subscriber Content     Updated Posts    Contact
CapitolFax.com
To subscribe to Capitol Fax, click here.
Supreme Court denies Van Dyke resentencing bid

Tuesday, Mar 19, 2019

* Sun-Times

The Illinois Supreme Court on Tuesday denied a bid to resentence former Chicago Police Officer Jason Van Dyke in the murder of Laquan McDonald.

Attorney General Kwame Raoul and Special Prosecutor Joseph McMahon filed a petition with the court in February seeking a new sentencing hearing for Van Dyke.

Cook County Judge Vincent Gaughan gave Van Dyke 81 months behind bars in January. A jury in October found Van Dyke guilty of second-degree murder and 16 counts of aggravated battery with a firearm.

The judge chose to sentence Van Dyke only on the second-degree murder count, finding it to be the more serious crime. Raoul and McMahon challenged that decision in their petition. […]

Meanwhile, Van Dyke’s lawyers filed a notice of appeal in anticipation of the petition from Raoul and McMahon. His lawyers later suggested they would drop it if the high court declined to get involved. If it did get involved, it would “open a Pandora’s box” of legal issues that Van Dyke could raise in an appeal of trial decisions, his conviction and the sentence.

That Van Dyke notice is here.

* From Justice Thomas Kilbride’s partial concurrence and dissent

Fundamentally, this matter involves a dispute on discretionary sentencing issues that are not suitable for resolution in an action seeking mandamus or prohibition relief. Consequently, petitioners’ motion seeking leave to file a petition for writ of mandamus or prohibition should be denied. See People ex rel. Birkett v. Konetski (recognizing that the extraordinary remedy of mandamus relief is not available for discretionary matters).

In my opinion, however, the controversy here presents an important issue that warrants the exercise of this court’s supervisory authority. Notably, respondent, the trial judge, expressly relied on an argument made by a dissenting justice in People v. Lee. Without question, that dissent does not represent the law in Illinois. […]

Under these circumstances, I believe this court should enter a supervisory order directing the trial court to vacate its final sentencing judgment and resentence Van Dyke in accordance with the applicable sentencing law, including this court’s relevant decisions.

Justice P. Scott Neville dissented in full.

- Posted by Rich Miller        

28 Comments
  1. - Three Dimensional Checkers - Tuesday, Mar 19, 19 @ 10:26 am:

    I told ya it was going to be more complicated than just citing the Lee case.


  2. - Anonymous - Tuesday, Mar 19, 19 @ 10:31 am:

    Is this a proper summary? The SC will not take up the sentencing, but is asking the judge who gave out the sentence to reconsider the sentence.


  3. - wordslinger - Tuesday, Mar 19, 19 @ 10:32 am:

    –In my opinion, however, the controversy here presents an important issue that warrants the exercise of this court’s supervisory authority. Notably, respondent, the trial judge, expressly relied on an argument made by a dissenting justice in People v. Lee. Without question, that dissent does not represent the law in Illinois. –

    How would prosecutors seek to get the court to exercise its supervisory authority?


  4. - Chicagonk - Tuesday, Mar 19, 19 @ 10:32 am:

    @ThreeDimensionalCheckers - People on here were so quick to think that Judge Gaughan would be overruled. The Supreme Court is right to defer to Gaughan’s judgement in this case.


  5. - Hippopotamus - Tuesday, Mar 19, 19 @ 10:36 am:

    And that “folks” is how you drop a “hot potato”!


  6. - Perrid - Tuesday, Mar 19, 19 @ 10:44 am:

    wordslinger, reading the order, instead of the dissents, the majority seems to be saying fairly forcefully (imo) that Gaughan was correct, not just saying that Raoul went about asking for relief in the wrong way. Saying you can’t make the murder charge a nullity, etc.

    @Anonymous, no, Kilbride wanted to enter a supervisory order, but the majority didn’t go along with it.

    That’s my reading anyway, any actual lawyers read it different?


  7. - Anonymous - Tuesday, Mar 19, 19 @ 10:53 am:

    Thanks, Perrid.


  8. - Perrid - Tuesday, Mar 19, 19 @ 10:57 am:

    Fav Human, ILSC has 7 Justices, so 5-2.


  9. - West Side the Best Side - Tuesday, Mar 19, 19 @ 11:16 am:

    As I had pointed out in a previous discussion of this issue, a mandamus petition seeks to order a governmental official to do something they have to do. If Judge Gaughan had not imposed any sentence, mandamus would be proper. When he did impose a sentence that people disagree with them the normal appellate process is the way to challenge it. The State is very limited in what it can appeal and so it would, in this case, have to piggyback a challenge to the sentence in responding to the defense appeal. In this case the defense wiil, without much doubt, be dropping their appeal.


  10. - West Side the Best Side - Tuesday, Mar 19, 19 @ 11:18 am:

    “then” not “them”


  11. - Sue - Tuesday, Mar 19, 19 @ 11:36 am:

    Right call- our new AG’s motion was blatant politics and not based on law. The trial judge is really well respected and his sentencing decision was well within his allowed discretion.


  12. - Perrid - Tuesday, Mar 19, 19 @ 11:43 am:

    Sue, 2 of the 7 Justices dissented. That implies there’s an actual legitimate question that needed to be settled, so calling it “blatant politics” is taking the win a step too far, assuming facts not in evidence so to speak.


  13. - Fax Machine - Tuesday, Mar 19, 19 @ 11:47 am:

    Justice Neville has to run to keep his seat in what will be a very competitive and expensive primary next year. So far Appellate Justices Shelly Harris and Jesse Reyes have already announced they are running this week.


  14. - Fax Machine - Tuesday, Mar 19, 19 @ 11:51 am:

    The idea that he should have received a minimum of 96 years was always a pipe dream. It was one act and the 16 counts aggravated batteries would have resulted in one Class X sentence which is 6-30 years. Since his sentence of 81 months is within that there was really no question here other than if he would do 50% or 80% of that.


  15. - Amalia - Tuesday, Mar 19, 19 @ 12:38 pm:

    so Justice Theis did not participate so it’s 4-2, is this correct? and the majority did not offer an opinion, is this correct? which makes it even more confusing because the dissent and partial dissent have some particular issues re how Gaughan decided it and it would be nice to have reasoning behind how some justices agreed that Gaughan got it right. or maybe I’m wrong on these facts, but that’s what I’m reading.


  16. - Bourbon Street - Tuesday, Mar 19, 19 @ 1:09 pm:

    In the concurring part of his opinion, Justice Kilbride explained that mandamus relief is not available to review a discretionary act by a judge. In other words, the State cannot use a petition for a writ of mandamus to ask the Illinois Supreme Court to order a new sentencing hearing merely where the sentencing judge exercised discretion in reaching a decision and the State disagrees with that exercise of discretion.

    In his dissent, Kilbride opines that a supervisory order should be issued because he believes that Judge Gaughan ignored relevant sentencing law by relying on the dissenting opinion in People v. Lee. Apparently (because the majority does not say so explicitly), the majority disagrees with Kilbride’s analysis.

    Basically, the way I read this order, this is a 5-1 decision on the mandamus issue. I don’t know if the State asked for a supervisory order so it’s impossible for me to give a number count.


  17. - JoanP - Tuesday, Mar 19, 19 @ 1:20 pm:

    Rich, you link to the Supreme Court’s order actually links to the Respondent’s Objection to the Petition for Mandamus, not to the order itself.


  18. - JoanP - Tuesday, Mar 19, 19 @ 1:21 pm:

    “your”, not “you”.


  19. - JoanP - Tuesday, Mar 19, 19 @ 1:25 pm:

    @perrid -

    The majority said no such thing. There was no statement explaining the order. See Rich’s second link.


  20. - Three Dimensional Checkers - Tuesday, Mar 19, 19 @ 1:43 pm:

    It is difficult to know exactly what the majority thought because there is no majority opinion. It seems pretty safe to say that they did not read Lee as strictly as Justice Kilbride does or else he wouldn’t be in the minority.


  21. - Perrid - Tuesday, Mar 19, 19 @ 1:44 pm:

    JoanP - thanks. I thought I was reading the order, not the Respondent’s Objection. This is why I’m not a lawyer, lol.

    Also changing my 5-2 comment, going over it again it looks like it was 4 concurring to 2 dissenting (I’m counting Kilbride as only a dissenter) and 1 abstaining.

    Clearly my reading comprehension needs some work.


  22. - Amalia - Tuesday, Mar 19, 19 @ 2:43 pm:

    does it happen often that the majority issues a ruling with no explanation? it’s only 4-2. we need to know why.


  23. - JoanP - Tuesday, Mar 19, 19 @ 3:41 pm:

    @Amalia -

    But this wasn’t a “ruling”. It was an order denying a motion for leave to file a petition for writ of mandamus. It’s unusual for the Court to provide reasons for the denial of such a petition, or denying petitions for leave to appeal, etc. And it’s also fairly rare for justices to issue written dissents in these situations.


  24. - Amalia - Tuesday, Mar 19, 19 @ 3:49 pm:

    @Joan P, thanks for that answer. frustrating to have only the written dissents and nothing else. thanks again.


  25. - Anonymous - Tuesday, Mar 19, 19 @ 4:25 pm:

    ==Right call- our new AG’s motion was blatant politics and not based on law.==

    Not sure about this. The judge had discretion and many of us feel that justice was less-than-served.


  26. - MyTwoCents - Tuesday, Mar 19, 19 @ 4:58 pm:

    The Supreme Court has ruled, and unfortunately we will never know the logic of their decision.

    However, Sue, it is highly ironic to call the decision by the Attorney General and Special Prosecutor “blatantly political” when the 4 justices that decided to deny the petition without explanation are 3 Republicans (including the justice whose dissent is the center of the argument) and Justice Burke. There is no guarantee that the 4 justices were not acting in a partisan manner themselves when they let the sentence for the former cop stand.


  27. - Anonymous - Tuesday, Mar 19, 19 @ 7:47 pm:

    Sue, I don’t know who your circle is, but I don’t agree that the judge us highly respected. He is the same one who allowed R. Kelly to game the system by dragging out his last trial for six years, frequently holds hearings behind closed doors, and was the perp in an armed standoff with the police.

    https://www.chicagoreader.com/chicago/judge-vincent-gaughan-laquan-mcdonald-shooting/Content?oid=20876808


  28. - Pc - Tuesday, Mar 19, 19 @ 10:24 pm:

    Judge Gaughan purposely violated the law by following a dissenting opinion rather than the controlling majority decision — that’s a fact. Why is it ok for him to do so? Why is it ok for the majority of our Supreme Court, including the Chief Justice of that court, not to explain to us why they chose to let this stand? I assure you, they would not have done this for one of my clients. This has been the darkest day in my 14 years as a public defender.


TrackBack URI

Sorry, comments for this post are now closed.


* Reader comments closed for the weekend
* It's just a bill
* Question of the day
* Energy News: Local Governments To Miss Out On $222 Million in potential tax revenue
* White, rural and suburban enrollment plummets at WIU
* 40,686 K-12 students in Illinois not vaccinated for measles
* Circular firing squad escalates: Rep. McSweeney calls on Leader Durkin to resign
* Audit: Department of Insurance not examining troubled local pension funds
* SUBSCRIBERS ONLY - Fundraiser list
* Raoul turns up the heat on bus company
* New tollway director, ICC chair named
* Courts go back and forth over hospital closure
* *Yoink*
* Our sorry state
* SUBSCRIBERS ONLY - Today's edition of Capitol Fax (use all CAPS in password)
* *** LIVE COVERAGE ***
* Yesterday's stories

Support CapitolFax.com
Visit our advertisers...

...............

...............

...............

...............

...............

...............

...............

...............
<


Loading


Main Menu
Home
Illinois
YouTube
Pundit rankings
Obama
Subscriber Content
Durbin
Burris
Blagojevich Trial
Advertising
Updated Posts
Polls

Archives
April 2019
March 2019
February 2019
January 2019
December 2018
November 2018
October 2018
September 2018
August 2018
July 2018
June 2018
May 2018
April 2018
March 2018
February 2018
January 2018
December 2017
November 2017
October 2017
September 2017
August 2017
July 2017
June 2017
May 2017
April 2017
March 2017
February 2017
January 2017
December 2016
November 2016
October 2016
September 2016
August 2016
July 2016
June 2016
May 2016
April 2016
March 2016
February 2016
January 2016
December 2015
November 2015
October 2015
September 2015
August 2015
July 2015
June 2015
May 2015
April 2015
March 2015
February 2015
January 2015
December 2014
November 2014
October 2014
September 2014
August 2014
July 2014
June 2014
May 2014
April 2014
March 2014
February 2014
January 2014
December 2013
November 2013
October 2013
September 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
February 2013
January 2013
December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012
December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011
December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010
December 2009
November 2009
October 2009
September 2009
August 2009
July 2009
June 2009
May 2009
April 2009
March 2009
February 2009
January 2009
December 2008
November 2008
October 2008
September 2008
August 2008
July 2008
June 2008
May 2008
April 2008
March 2008
February 2008
January 2008
December 2007
November 2007
October 2007
September 2007
August 2007
July 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007
December 2006
November 2006
October 2006
September 2006
August 2006
July 2006
June 2006
May 2006
April 2006
March 2006
February 2006
January 2006
December 2005
April 2005
March 2005
February 2005
January 2005
December 2004
November 2004
October 2004

Blog*Spot Archives
November 2005
October 2005
September 2005
August 2005
July 2005
June 2005
May 2005

Syndication

RSS Feed 2.0
Comments RSS 2.0
WordPress




Hosted by MCS SUBSCRIBE to Capitol Fax Advertise Here Mobile Version Contact Rich Miller