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* 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
Tuesday, Mar 19, 19 @ 10:17 am
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I told ya it was going to be more complicated than just citing the Lee case.
Comment by Three Dimensional Checkers Tuesday, Mar 19, 19 @ 10:26 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.
Comment by Anonymous Tuesday, Mar 19, 19 @ 10:31 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?
Comment by wordslinger 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.
Comment by Chicagonk Tuesday, Mar 19, 19 @ 10:32 am
And that “folks” is how you drop a “hot potato”!
Comment by Hippopotamus Tuesday, Mar 19, 19 @ 10:36 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?
Comment by Perrid Tuesday, Mar 19, 19 @ 10:44 am
Thanks, Perrid.
Comment by Anonymous Tuesday, Mar 19, 19 @ 10:53 am
Fav Human, ILSC has 7 Justices, so 5-2.
Comment by Perrid Tuesday, Mar 19, 19 @ 10:57 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.
Comment by West Side the Best Side Tuesday, Mar 19, 19 @ 11:16 am
“then” not “them”
Comment by West Side the Best Side Tuesday, Mar 19, 19 @ 11:18 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.
Comment by Sue Tuesday, Mar 19, 19 @ 11:36 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.
Comment by Perrid Tuesday, Mar 19, 19 @ 11:43 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.
Comment by Fax Machine Tuesday, Mar 19, 19 @ 11:47 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.
Comment by Fax Machine Tuesday, Mar 19, 19 @ 11:51 am
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.
Comment by Amalia Tuesday, Mar 19, 19 @ 12:38 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.
Comment by Bourbon Street Tuesday, Mar 19, 19 @ 1:09 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.
Comment by JoanP Tuesday, Mar 19, 19 @ 1:20 pm
“your”, not “you”.
Comment by JoanP Tuesday, Mar 19, 19 @ 1:21 pm
@perrid -
The majority said no such thing. There was no statement explaining the order. See Rich’s second link.
Comment by JoanP Tuesday, Mar 19, 19 @ 1:25 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.
Comment by Three Dimensional Checkers Tuesday, Mar 19, 19 @ 1:43 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.
Comment by Perrid Tuesday, Mar 19, 19 @ 1:44 pm
does it happen often that the majority issues a ruling with no explanation? it’s only 4-2. we need to know why.
Comment by Amalia Tuesday, Mar 19, 19 @ 2:43 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.
Comment by JoanP Tuesday, Mar 19, 19 @ 3:41 pm
@Joan P, thanks for that answer. frustrating to have only the written dissents and nothing else. thanks again.
Comment by Amalia Tuesday, Mar 19, 19 @ 3:49 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.
Comment by Anonymous Tuesday, Mar 19, 19 @ 4:25 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.
Comment by MyTwoCents Tuesday, Mar 19, 19 @ 4:58 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
Comment by Anonymous Tuesday, Mar 19, 19 @ 7:47 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.
Comment by Pc Tuesday, Mar 19, 19 @ 10:24 pm