Experts: Decent chance Van Dyke’s sentence will be tossed

By Michael Tarm
Associated Press

CHICAGO — Some legal experts believe there’s a reasonable chance the prison sentence of less than seven years imposed on a Chicago police officer last week for second-degree murder in the fatal shooting of teenager Laquan McDonald 16 times could be tossed out and a new sentencing ordered.

Van Dyke, 40, went to trial charged with first-degree murder, which carries a mandatory minimum prison term of 45 years. But jurors in October opted to replace it with second-degree murder after finding Van Dyke shot McDonald out of fear for his life, though that fear was unreasonable.

They convicted him of one count of second-degree murder, which carries a prison term of between four and 20 years, and of 16 counts of aggravated battery — one for each shot. Each count of aggravated battery carries a prison term of between six and 30 years. Because of the number of counts and other factors, it’s widely agreed that Van Dyke could have gotten a far stiffer sentence if sentenced on the battery counts.

If he is not resentenced, Van Dyke will almost certainly serve just half of his second-degree murder sentence and end up behind bars for only around three years when credit for good behavior is factored in. Many community activists have called the sentence a mere slap on the wrist.

Illinois Attorney General Kwame Raoul said this week that his office would review the Van Dyke sentence.

Here’s a look at how that happened and some of the legal issues involved:

Q: WHAT’S THE BIG LEGAL ISSUE?

A: At sentencing, Judge Gaughan laid out the decisive legal question he had to answer before he could pronounce sentence. “Was it more serious,” he asked, “for Laquan McDonald to be shot by a firearm or is it more serious for Laquan McDonald to be murdered by a firearm?”

The issue stems from what is known in Illinois as the one-act, one-crime doctrine. If the accused is convicted of multiple crimes for what amounts to a single act, then the judge can only sentence the defendant for the most serious crime. The doctrine was designed to prevent prosecutors from trying to inflate sentences by piling charges onto a single act.

Under the doctrine, a bank robber who beat a guard outside a bank, who fatally shot someone inside and who got away with the bank’s money would have committed three separate acts and so can be sentenced for all three. But Van Dyke’s shooting of McDonald was considered a single act; the 16 shots fired over a span of no more than 30 seconds both murdered him and physically battered the 17-year-old.

Gaughan said second-degree murder was the more serious crime, adding: “Common sense comes to an easy answer.”

Q: CONTROLLING PRECEDENT?

A: Several legal experts said his answer may sound easy and intuitive, but that it’s also wrong. They say his conclusion runs directly counter to guiding precedent — a 2004 Illinois Supreme Court ruling in a case called People v. Lee that also involved someone convicted of both second-degree murder and aggravated battery.

The majority of justices concluded that trial judges need simply look at the sentences Illinois legislators deemed appropriate for each crime: Between two crimes, the one with the higher sentence is the more serious. Though it’s counterintuitive, they said unambiguously that aggravated battery had the higher sentence, hence is the more serious crime under Illinois law.

In his brief, 10-minute explanation of his sentence for Van Dyke, Gaughan did refer to the People v. Lee case. But he only cited its dissent, in which Justice Robert Thomas said the length of the sentences shouldn’t be the sole factor determining the seriousness of a crime. Thomas suggested judges should have more leeway and look at each sentencing on a case-by-case basis.

Q: DOES HIS REASONING RAISE QUESTIONS?

A: Several legal experts said Gaughan’s reference only to a dissent on such a crucial question does raise red flags.

“It’s very, very unusual,” said Chicago based-criminal attorney Phil Turner. “The majority decision is the controlling decision. As a lower court judge, you are bound to follow the majority opinion.”

Turner speculated Gaughan went into the hearing knowing he wanted to impose a relatively light sentence.

“He was clearly looking for some support from somewhere for what he was doing,” which he found in the dissent, Turner said. “He had a conclusion and wanted to justify it.”

Turner said a sentence in the decades would have been more appropriate. He calls Gaughan’s sentence “a joke,” saying it sends the message that police officers aren’t subject to the same set of sentencing rules.

Another defense attorney also not connected to Van Dyke’s case, Steve Greenberg, said he sympathized with Gaughan’s reference to common sense. But he also agreed that by reaching for a dissent to justify his sentence he may have opened the way for a higher court to throw the sentence out.

“From a logical standpoint, I think (Gaughan’s) 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.”

Van Dyke’s lawyer, Dan Herbert, disagreed in a statement this week responding to talk about an appeal of the sentence. He said “the judge in this case carefully considered the arguments made and issued the correct ruling under the law.”

Q: WHY IS THE ILLINOIS ATTORNEY GENERAL WEIGHING IN?

Kwame Raoul, sworn in as the state’s new attorney general just five days before Van Dyke was sentenced, previously represented a district in the Illinois Senate that includes minority areas on Chicago’s South Side. He frequently campaigned on civil rights and spoke out about police abuse after McDonald’s killing.

A spokeswoman for the attorney general’s office, Maura Possley, said in a brief Thursday statement that “we are going to do a careful review of the record and the law and make a determination based on our review.” But she offered no details, including on potential lines of argument in any appeal.

After Raoul’s office announced that it was reviewing Van Dyke’s sentence, Herbert criticized the attorney general, saying the action was politically motivated. He said the attorney general’s office could have weighed in prior to sentencing in a friend-of-the-court brief and made its views clear to the judge then.

“Now he suddenly has concerns after the sentencing in the wake of some public outcry,” Herbert said in a written statement. “This is about politics not the law.”

The special prosecutor who tried the case, Joseph McMahon, confirmed this week his office was also reviewing the sentence. But he was non-committal. His statement said prosecutors can’t directly appeal a sentence but can seek what is called a writ of mandamus — an order from the Illinois Supreme Court telling a judge to adhere to the correct law.

Q: HOW RARE ARE BIDS FOR RESENTENING?

A: Very rare. People convicted of murder often appeal their convictions or sentences. It’s much rarer for prosecutors to even attempt to appeal a sentence they aren’t happy with. That’s true in part because prosecutors know sentencing judges have enormous discretion on many matters and that higher courts typically give them the benefit of the doubt.

A rare instance when Illinois prosecutors successfully sought a higher sentence was the case of Jang Bae, convicted of murder in the deaths of three firefighters killed in a 1985 blaze that Bae, an electronics store owner, paid someone to start in trying to collect on a $250,000 insurance policy.

Cook County Judge Earl Strayhorn had rejected calls at the original sentencing to impose the death penalty, handing Bae a 70-year prison sentence instead. The Illinois Supreme Court agreed with prosecutors and found Judge Strayhorn got the law wrong and that, after refusing to impose the death penalty, his only option was to sentence Bae to life in prison.