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* As we discussed last week, Cook County Judge Vincent Gaughan sentenced Jason Van Dyke for 2nd Degree Murder instead of on the 16 counts of Aggravated Battery With a Firearm, even though the Illinois Supreme Court has clearly ruled that convicted defendants should be charged with the Class X Aggravated Battery instead of the 2nd Degree Murder charge.
I just saw Dave Clarkin’s tweet from last night, which sums it up rather well…
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.
— Dave Clarkin (@daveclarkin) January 24, 2019
* Anyway, I’ve been working on this story for a few days and told subscribers about it this morning, but WBEZ also reported it out…
Illinois Attorney General Kwame Raoul’s office says it is reviewing the legality of the sentence handed down last week to former Chicago Police Officer Jason Van Dyke for the murder of Laquan McDonald.
“We are going to do a careful review of the record and the law and make a determination based on our review,” Maura Possley, a spokeswoman for the office, said Wednesday afternoon. […]
Some legal experts say the best way to challenge Van Dyke’s sentence would be to seek a “mandamus” order from the Illinois Supreme Court. That court could find Gaughan violated the law by basing the punishment on the second-degree murder count, a Class 1 felony, instead of the battery counts, which carry a more serious designation, Class X.
A spokesman for [Special Prosecutor Joseph McMahon] on Wednesday said the special prosecutor is “still reviewing” the sentence.
Stay tuned.
*** UPDATE 1 *** Tribune…
Daniel Herbert, one of Van Dyke’s attorneys, blasted the review by the attorney general as politically motivated, accusing Raoul of exploiting “the tragic death of Laquan McDonald for his own political gain.”
The office could have filed legal briefs in response to Herbert’s arguments at sentencing but chose not to, Herbert pointed out.
“Now he suddenly has concerns after the sentencing in the wake of some public outcry,” he said in an emailed statement. “This is about politics, not the law.”
Raoul was sworn in a few days before the sentencing date, so that argument is bogus.
*** UPDATE 2 *** From the special prosecutor’s office…
The propriety of a sentence may be challenged by filing a petition for a Writ of Mandamus. However, the granting or denial of that petition is subject to the discretion of the Illinois Supreme Court. We are currently reviewing the trial court’s ruling in conjunction with the relevant case law and statutory authority that bears on the sentence imposed on Jan. 18. The unique facts of this case require consideration of the complex principles of Illinois law.
posted by Rich Miller
Thursday, Jan 24, 19 @ 11:34 am
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Is the appeal up to Kwame or McMahon?
Comment by ? Thursday, Jan 24, 19 @ 11:47 am
AG might defter to special prosecutor, but if no action is taken I think he could step in.
Comment by Rich Miller Thursday, Jan 24, 19 @ 11:48 am
Dave Clarkin makes a great point. The incentives created for police by Gaughan’s decision are truly disturbing. Recall that, in this case, McDonald was alive for some time after being shot and there were reports that Chicago police were slow to offer him aid. In light of Gaughan’s decision, McDonald’s death turned out to be a pretty good thing for Van Dyke. Had McDonald lived, there would be no second degree murder charge for his aggravated battery with a firearm convictions to “merge” into. By McDonald dying, a potential 96-year minimum sentence turned into a 4-year minimum sentence
Comment by PC Thursday, Jan 24, 19 @ 11:52 am
I’m not going to argue what the law is, besides saying that Rich’s point about the current IL SC ruling seems convincing.
However, I kinda think Dave’s point is more pointing out the absolute absurdity of Aggravated Battery with a firearm having a higher mandated sentence than second degree murder. Like I said on the other post, under this law shooting someone in the foot is worse than stabbing someone and killing them, just because a gun was used? That makes no sense. Just my layperson’s take on it.
Comment by Perrid Thursday, Jan 24, 19 @ 11:56 am
yep. let’s get tougher on crime. start reviewing lots of sentences.
Comment by Amalia Thursday, Jan 24, 19 @ 12:17 pm
I doubt Judge Gaughan is going to sentence him to 96 years even if the appeal is successful.
Comment by Three Dimensional Checkers Thursday, Jan 24, 19 @ 12:19 pm
The problem is with the statute that makes Second Degree a Class 1 and Age Batt a Class X. Because Madigan.
Comment by Hippopotamus Thursday, Jan 24, 19 @ 12:22 pm
Both the Attorney General and the State’s Attorney (or special prosecutor) seem to have the authority to file mandamus actions in the Supreme Court.
The PEOPLE of the State of Illinois ex rel. Anita ALVAREZ, Petitioner,
v.
Honorable Vincent GAUGHAN et al., Respondents.
72 N.E.3d 276 (2016)
2016 IL 120110
410 Ill.Dec. 890
Comment by Bigtwich Thursday, Jan 24, 19 @ 12:26 pm
Just last year the appellate court affirmed an aggravated battery with a firearm sentence under the same circumstances as in Van Dyke’s case. After the19-year-old defendant, Cody McGuire, was found guilty of second degree murder and aggravated battery/firearm, the trial court “vacated defendant’s conviction for second degree murder as a lesser-included offense of aggravated battery with a firearm and sentenced him to 17 years in prison for aggravated battery with a firearm.” So McGuire is serving a 17-year sentence at 85% (14.5 years) that is far longer than the max for second degree (50% of 20 years)
If the attorney general is not going to seek correction of Van Dyke’s sentence, then he should immediately seek to have McGuire re-sentenced on 2nd degree murder.
Link to app ct opinion: http://www.illinoiscourts.gov/Opinions/AppellateCourt/2017/4thDistrict/4150695.pdf
Comment by PC Thursday, Jan 24, 19 @ 12:32 pm
And Rod got 14 for his crimes. Unbelievable.
Comment by Bobby Hicks Thursday, Jan 24, 19 @ 12:38 pm
=the absolute absurdity of Aggravated Battery with a firearm having a higher mandated sentence than second degree murder. Like I said on the other post, under this law shooting someone in the foot is worse than stabbing someone and killing them, just because a gun was used? =
That’s not a completely accurate comparison. Yes, the sentence on the Aggravated Battery is greater because of the use of a gun (very common penalty enhancement factor), but it’s not *necessarily* worse than stabbing and killing someone. You’re ignoring the fact that we are talking about SECOND degree, not FIRST degree murder, so there’s a less culpable mental state.
=And Rod got 14 for his crimes. =
Patty, is that you?
Comment by JoanP Thursday, Jan 24, 19 @ 12:51 pm
=== However, I kinda think Dave’s point is more pointing out the absolute absurdity of Aggravated Battery with a firearm having a higher mandated sentence than second degree murder. Like I said on the other post, under this law shooting someone in the foot is worse than stabbing someone and killing them, just because a gun was used? That makes no sense. Just my layperson’s take on it. ===
I had the same thought. Although, admittedly, many are far more qualified than me to dissect this issue.
Comment by Just Observing Thursday, Jan 24, 19 @ 1:20 pm
If a regular citizen had committed this cold-blooded murder the sentence wouldn’t have been 6 years.
Comment by Anonymous Thursday, Jan 24, 19 @ 1:25 pm
=If a regular citizen had committed this cold-blooded murder the sentence wouldn’t have been 6 years. =
The jury determined that it wasn’t a cold-blooded murder. You may disagree, but defendants are sentenced on what they are actually convicted of, not what blog commenters think they should have been convicted of.
Comment by JoanP Thursday, Jan 24, 19 @ 1:43 pm
===The jury determined that it wasn’t a cold-blooded murder===
2nd Degree Murder is 1st Degree Murder with mitigating circumstances.
Comment by Rich Miller Thursday, Jan 24, 19 @ 1:45 pm
JoanP, are you a lawyer?
If an ordinary citizen committed 2nd degree murder, and Agg Batt with Firearm, the sentence wouldn’t have been 6 years at 50%.
Comment by 33rd Ward Thursday, Jan 24, 19 @ 1:49 pm
The special prosecutor admitted during the sentencing hearing that sentencing Van Dyke to all 16 aggravated battery counts would create constitutional issues of its own. Judge Gaughen also revealed exactly what he thinks about the case in his sentence. Getting excited about putting Van Dyke away for some huge term is just going to lead to frustration.
Comment by Three Dimensional Checkers Thursday, Jan 24, 19 @ 1:54 pm
I think this is a mistake and waste of resources on the part of the AG and special prosecutor and is a good reminder why judges ideally should be insulated from politics. Kwame Raoul has always been a proponent of criminal justice reform and as a legislator frequently pushed back against politicians that tried to capitalize on public anger to make sentences more punitive.
Comment by Chicagonk Thursday, Jan 24, 19 @ 1:55 pm
@Chicagonk, you completely ignored the actual argument presented, and instead created a straw
man to attack. There’s a legitimate question, at least on the surface, of whether or not the judge followed the law as written. Now maybe looking at the entirety of the case law would justify the sentence, I have no idea. But this isn’t *just* public outrage.
Comment by Perrid Thursday, Jan 24, 19 @ 2:05 pm
===why judges ideally should be insulated from politics===
I don’t get what you’re saying. Judges make mistakes.
Comment by Rich Miller Thursday, Jan 24, 19 @ 2:09 pm
So what if Kim Foxx, McMahon, & Kwame all want to appeal or strongly not, who’s actually the State on this one?
Comment by ? Thursday, Jan 24, 19 @ 2:37 pm
The idea that human judges, or anyone, can ever be actually isolated from politics is laughable. Better to have robust mechanism to hold Judges accountable when they twist the law to suit their own desires, which seems like what is happening here.
Comment by Actual Red Thursday, Jan 24, 19 @ 2:52 pm
– Three Dimensional Checkers - Thursday, Jan 24, 19 @ 12:19 pm: I doubt Judge Gaughan is going to sentence him to 96 years even if the appeal is successful. –
There’s lots of issues with that statement, but suffice to say that if the appeal that Rich and others are talking about is “successful” in the way that they are talking about it, then 96 years is the minimum sentence.
To the post/other comments:
What is missing from this conversation overall is the issue of an agg batt charge for each individual shot. I don’t believe that is a common method of charging. This was all one action - one act, one crime. The sentences run consecutively if they are consecutive crimes only. Most murders in Cook County are not charged in that way. Van Dyke has an interesting argument on appeal if he’s sentenced for the 16 consecutive crimes of agg bat.
I think the sentence Van Dyke received is a travesty, and he should be locked up a lot longer. But everyone should calm down and let the special prosecutor and AG look at the other side of the case before rushing a commitment to file a writ of mandamus.
Comment by Notorious RBG Thursday, Jan 24, 19 @ 3:02 pm
=2nd Degree Murder is 1st Degree Murder with mitigating circumstances. =
That was pretty much my point. In this case, it was imperfect self-defense. So not “cold-blooded”.
=JoanP, are you a lawyer?
If an ordinary citizen committed 2nd degree murder, and Agg Batt with Firearm, the sentence wouldn’t have been 6 years at 50%. +
Yep, to both (at least, if the ordinary citizen had fired 16 separate shots). I can absolutely envision an ordinary citizen with a clean record getting the statutory minimum, though.
Because Gaughan ignored the relevant case law, and sentenced Van Dyke on the 2d Degree murder rather than the Agg Battery counts, the question of whether sentences on those counts would have to run consecutively was never addressed.
Comment by JoanP Thursday, Jan 24, 19 @ 3:06 pm
===If an ordinary citizen committed 2nd degree murder, and Agg Batt with Firearm, the sentence wouldn’t have been 6 years at 50%.====
I think you should look up some of Kim Foxx decisions on what some of these ordinary citizens get charged with in the first place. I think we need criminal justice reform but its ironic some of the people who scream about “ordinary” citizens getting too tough of sentences are the same ones screaming about this being too light. Personally I think he got off too easy but I also don’t think he should have received 16 consecutive sentences. I also agree with Perrid’s above statements. This is an area that needs some review either way.
Comment by Been There Thursday, Jan 24, 19 @ 3:19 pm
==And Rod got 14 for his crimes. Unbelievable.== Unbelievable, but more an argument for adjusting Van Dyke’s sentence than Rod’s.
Comment by SAP Thursday, Jan 24, 19 @ 3:19 pm
What SAP said.
Comment by Rich Miller Thursday, Jan 24, 19 @ 3:20 pm
== then 96 years is the minimum sentence. ==
As I said, Mr. McMahon himself said such a sentence is likely unconstitutional. Whether you agree with Judge Gaughan or not, his ruling is evidence about what he thinks about the case. I did not agree with Judge Gaughan’s sentence, but I don’t think 96 years is just either.
Comment by Three Dimensional Checkers Thursday, Jan 24, 19 @ 3:33 pm
Rod’s experience was in Federal Court. things always seem more serious there. (and easier for prosecutors.)
Comment by Amalia Thursday, Jan 24, 19 @ 3:58 pm
Nobody is looking at the original charge of 1st degree murder to the extent that the jury found mitigating reasons to reduce the charge to 2nd degree murder. If aggravated battery with a firearm caused the original charge of Murder One and the jury saw mitigating factors for the more serious charge of Murder One, logic suggests the mitigating factors for the more serious charge originally filed should also be applied to the agg. battery charge which is a lesser charge than First Degree Murder. suggests fit to
Comment by Roscoe Tom Thursday, Jan 24, 19 @ 6:59 pm
There is no statutory or Supreme Court rule that allows a sentence to be appealed by the state. that creates constitutional double jeopardy concerns. Mandamus is very difficult and appropriate only if the judge violated a statute or exceeded his powers. That didn’t happen here. Its just Raoul virtue signalling. That is a bad start. Madigan did the opposite but similar when she first started by appealing some of Ryan’s death penalty commutations to prove her law and order bonafides. Illinois Supreme court didn’t let her get away with it and won’t let Kwame do it here.
Comment by commonsense 171 Thursday, Jan 24, 19 @ 7:00 pm
@Joan P 3:06
“imperfect self-defense”?
Are you the judge who let the 3 CPD officrs who filed false reports regarding VanDyke shooting LaQuan McDonald walk last week?
VanDyke hadn’t even been at the scene for a minute when he put 16 bullets in the young man walking away from him.
So who, pray tell, was engaged in “imperfect self-defense”?
Because, from my couch in central Illinois, sure looks like LaQuan McDonald was murdered by a hot-headed cop, who, along with at least 4 of his fellow officers, lied on the incident reports they filed.
(Blago’s in jail for a reasonable time. VanDyke should be sentenced to more time.)
Comment by Lynn S. Thursday, Jan 24, 19 @ 9:13 pm