Prosecutors seek new sentence in Jason Van Dyke case

Associated Press

CHICAGO — Prosecutors on Monday asked Illinois’ highest court to review the less than seven year prison sentence for the Chicago police officer who fatally shot teenager Laquan McDonald — an unusual move in what was already a rare case.

Illinois Attorney General Kwame Raoul and the special prosecutor who won a murder conviction against former officer Jason Van Dyke, Kane County State’s Attorney Joseph McMahon, said they believe Cook County Judge Vincent Gaughan improperly applied the law last month when he sentenced Van Dyke to six years and nine months in prison. Raoul and McMahon filed a request with the Illinois Supreme Court seeking an order that could ultimately result in the court forcing Gaughan to impose a longer sentence.

“This is the first step in asking the court to declare that the trial court improperly sentenced Jason Van Dyke for the murder and aggravated battery of Laquan McDonald and to order a new sentencing hearing,” Attorney General Kwame Raoul said at a news conference.

Monday’s court filing was the latest chapter in an ongoing saga that has included massive demonstrations, the firing of the police superintendent by the mayor and the ouster of the county’s top prosecutors by voters a few months later. Police video of the shooting that the city released in 2015 under court order showed Van Dyke firing 16 bullets into McDonald, some of them after the 17-year-old fell to the ground.

The sentence for Van Dyke was the first imposed on a Chicago police officer for an on-duty shooting in a half century. It followed a jury’s decision in October to convict the officer of second-degree murder and 16 counts of aggravated battery with a firearm.

The central issue in prosecutors’ petition is an Illinois law that allows a judge to sentence a person for only the most serious crime when he is convicted of multiple crimes for what amounts to a single act. Gaughan determined that second-degree murder was the more serious crime, although it carries a lighter sentence than aggravated battery. The murder charge calls for a sentence of between four and 20 years in prison, compared with six to 30 years in prison for aggravated battery.

Both Raoul and McMahon steered clear of saying whether they believed the sentence was too short. But McMahon had argued in court documents ahead of the January hearing that Gaughan should impose a sentence of at least 18 years in prison. Defense attorneys had sought probation.

One of Van Dyke’s attorneys, Darren O’Brien, said Monday that prosecutors’ contention that the judge should sentence Van Dyke on the aggravated battery charge because it is more serious than second-degree murder doesn’t make sense.

“It’s common sense that the lesser harm of getting shot would merge into the greater harm of getting killed,” O’Brien said.

At the January sentencing hearing, Van Dyke, Gaughan, too, had said it was “common sense” that second-degree murder was the more serious charge, calling it an “easy answer.”

Prosecutors in their legal filing pointed to a 2004 Illinois Supreme Court ruling in which a majority of justices concluded that aggravated battery is the more serious charge because it carries a stiffer penalty.

Prosecutors cannot directly appeal a sentence but are seeking what is called a writ of mandamus, which can result in an order from the Illinois Supreme Court telling a judge to adhere to the correct law.

“This is the only way for us to challenge the legality of a sentence,” McMahon told reporters.

Absent a new sentence, Van Dyke will likely serve only about three years, with credit for good behavior.

Van Dyke’s attorneys have notified the court of plans to appeal the conviction, but O’Brien declined to discuss what arguments they may make.

Raoul took office in January, and Van Dyke’s attorneys have decried the decision to review the sentence as a political stunt.

Raoul bristled at that suggestion.

“This is not a political question,” he said. “This is a question of law.”