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The (Not Even Close) Case Against Jason Van Dyke

"After about two hours of closing arguments, jurors [in the Jason Van Dyke trial] were instructed on the law by Judge Vincent Gaughan and sent back at about 12:30 p.m. to begin deliberating what will be one of the most closely watched verdicts in Cook County history. If no verdict is reached Thursday, it is believed the jurors will be sequestered at a nearby hotel before resuming discussions Friday," the Tribune reported late Thursday.

No verdict was reached and, indeed, jurors were sequestered overnight. Deliberations are expected to continue today.

"Van Dyke, 40, is charged with two counts of first-degree murder, 16 counts of aggravated battery with a firearm and one count of official misconduct.

"Jurors, though, will have the option to instead find Van Dyke guilty of the lesser charge of second-degree murder. To do that, they would need to find that Van Dyke's claim he feared for his safety when he fired 16 shots at McDonald was unreasonable."

After reviewing coverage of the trial, I believe Van Dyke will be found guilty, one way or another. At least it's obvious to me that he should be found guilty. But you never know what a jury will do.

I will also say that Van Dyke's lawyer, Daniel Herbert, was less adept in the courtroom than I expected him to be, and that, surprisingly, Van Dyke's best day was the day he testified on his own behalf, simply because that's when he became human to the jury, flaws and all. He may have earned some sympathy that day. But that day also might have been his worst, because his testimony was so at odds with the video we've all seen and with the established facts of the case.

Anyway, I last wrote about the trial on September 18, when (or thereabouts) the prosecution wrapped up their case. Here are the highlights of what's happened since - the defense's case, the prosecution's cross-examination, Van Dyke's own testimony, and closing arguments - in roughly chronological order, with occasional commentary and analysis.

*

"A defense expert in the trial of a white police officer charged with murder in the death of Laquan McDonald on Monday criticized the official autopsy results in testimony that seemed to contradict what video of the 2014 shooting shows," the AP's Don Babwin reported, again unafraid to vet the testimony with his own eyes for us.

"Forensic pathologist Shaku Teas testified that she believes at least 12 of the 16 shots fired by Officer Jason Van Dyke on Oct. 20, 2014, hit McDonald before the 17-year-old was on the ground. Prosecutors told the jury last week that the video shows McDonald hitting the ground less than two seconds after the first shot was fired. Twelve more seconds of gunfire then follows, they said.

"Under intense questioning by prosecutors, Teas seemed to contradict her own testimony, saying she had no opinion on whether five of the shots hit the teen before he fell. She then stated that she didn't know how many shots hit McDonald before he fell."

In other words, Teas's testimony was a mess. A win for the prosecution.

*

"Later Monday, Van Dyke's attorneys turned to another key component of their strategy: McDonald himself. They called witnesses to testify about the teen's history of violent behavior. Miguel DeJsuus, who works at the Cook County Juvenile Detention Center, told jurors of an incident in which McDonald told him he was on drugs before striking him. Joseph Plaud of the Cook County's Sheriff's Department testified about seeing McDonald 'yelling, screaming, swearing' while he was in the juvenile court lockup a little more than a year before the shooting."

Objection, your honor - relevance!

"But both witnesses along with another man who worked in the lockup acknowledged that they never spoke to Van Dyke about McDonald before the shooting - admissions designed to tell the jury that Van Dyke knew nothing about the teen's past when he shot him."

Another win for the prosecution on the facts, though maybe the defense got half a point in its effort to present McDonald as a dangerous person - though I doubt it.

*

"Truck driver Rudy Barillas testified Wednesday he was parking in a secured lot on Chicago's Southwest Side in October 2014 when he spotted a black youth inside a truck, told him to leave and then called 911," the Tribune reported.

"'He pulled out a knife, and he wanted to hurt me,' Barillas said through a Spanish interpreter. 'He came towards me and tried to stab me.'

"As a rapt Cook County jury watched, Barillas rose on the witness stand and demonstrated how the attacker - later identified as 17-year-old Laquan McDonald - thrust the knife toward him in his right hand. Barillas said he was able to fend off the attack by throwing his cellphone at the man and then gravel at his face. He said the man fled when he heard him calling the police a second time.

"Barillas' story of his encounter with McDonald - which occurred minutes before the teen was fatally shot by Chicago police Officer Jason Van Dyke - bolstered the image Van Dyke's defense team has carefully painted of McDonald as an armed and aggressive individual who was a threat to both police and citizens.

"But it came with a catch: None of the police officers responding to the scene that night - including Van Dyke - knew that McDonald had tried to stab Barillas. In fact, the only information Van Dyke had at the time he opened fire was that the teen may have been burglarizing trucks and had 'popped' a squad car tire with his knife."

Another win for the prosecution, as the defense continues what will become a pattern of presenting witnesses who do not help their cause.

*

"In a tense cross-examination, [CPD officer Leticia] Velez stuck by her testimony that she was concerned that McDonald might have had a gun. However, she conceded that the entire incident happened so quickly that she didn't have time to warn other officers about her concern. She also said she was in shock at the time," the Tribune reported.

"While Velez initially said she did not recall whether she unholstered her weapon that night, after assistant special prosecutor Jody Gleason showed Velez her sworn testimony from another proceeding in 2015, the officer conceded she may have had her gun out.

"Velez also said under oath in 2015 that after Van Dyke's partner, Joseph Walsh, kicked the knife out of McDonald's hand after he had been shot 16 times, he conducted a thorough pat-down to search for weapons. However, the dashcam video of the shooting does not show Walsh taking that action, Gleason pointed out.

"When pressed, Velez maintained that Walsh did, in fact, conduct the search.

"'I'm saying he searched him, OK?' she said."

*

"The first time Yvette Patterson laid eyes on Laquan McDonald, he was hanging out in the alley behind her house as she came home from a party in the early morning hours of Oct. 20, 2014," the Sun-Times reported.

"He walked over and was like, 'Can I see your car? I just want to use it. I'll bring it right back,'" Patterson recalled on the witness stand Thursday, as a witness for the defense of Jason Van Dyke, the police officer who fatally shot McDonald less than 20 hours later.

"In her testimony Thursday, Patterson remembered 'laughing and talking' with the 17-year-old, and politely declining to loan him her car. Defense attorney Dan Herbert noted that she'd called 911 and in a 2015 interview with the FBI, she'd told agents the conversation started with McDonald asking her 'Who the fuck do you know that lives here?'

"Patterson insisted she wasn't frightened of McDonald but did want to be protected as she went inside.

"'I ended up calling the police for the simple fact that I wanted to get into the house, I wasn't in fear at all,' she said. 'He was a very nice young guy, evidently.'

"Patterson's cheery testimony was one of several blows to Van Dyke's defense, as his lawyers have struggled to build the case they previewed in their opening statement that McDonald was on a 'wild rampage' the night he was shot."

The defense might have been better off not presenting any witnesses at all.

*

"Assistant special prosecutor Joseph Cullen questioned [Dr. James Thomas] O'Donnell on whether McDonald was displaying rage that night - from the effects of the PCP - or whether he was simply trying to avoid police," the Tribune reported.

"'He continued to walk away from officers toward an empty fence . . . That's what you describe as rage?' Cullen asked.

"'Yes,' O'Donnell replied. 'He's still in the situation with a knife in his hand and disobeying orders from the police . . . still showing aggressive behavior and actions. I would describe that as violent rage behavior.'"

Erratic, yes. Violent rage? No.

*

"A Chicago police officer has told jurors at the trial of a white officer charged with murder in the shooting of Laquan McDonald that he once told officers to beware of people possibly carrying guns disguised as knives," AP reported.

"The testimony came Wednesday as defense attorneys sought to bolster their argument that Jason Van Dyke legitimately saw McDonald as a threat before shooting him 16 times as he walked away carrying a knife.

"William Schield said he raised the prospect with officers in 2012, two years before McDonald was killed, about knives specially fashioned to shoot bullets. The implication was that Van Dyke could have imagined McDonald had such a device."

This argument depends on the unlikelihood that Van Dyke - and no other officers at the scene - remembered that warning 24 months after, purportedly, hearing it. It also ignores that no other officer on the scene felt threatened when Van Dyke rolled up, jumped out of his car and unloaded 16 shots into McDonald. Maybe no one else got the 2012 memo.

*

"There were no explicit references to racism during the testimony, though witnesses made subtle references to skin color on several occasions. The defense, for example, commissioned an animated video of the shooting in which the designer put the McDonald character in all-black clothing and with a hoodie pulled over his head, despite video evidence showing him dressed in jeans with large, light-colored pockets and his sweatshirt hood down," the Tribune reported.

A) Why was the defense allowed to show an animated version of the shooting when a real version already exists on video?

B) Really with the hoodie and all-black clothing?

*

"The designer also testified he typically does not put skin color on animated characters, but he did so in this case."

Gee, I wonder why.

*

Also:

"On the stand, Van Dyke referred to McDonald in police parlance as a 'male black' in a hoodie at least four times during his testimony."

*

Now, if one was to give Van Dyke the benefit of the doubt in any way, shape or form, it might be that he misunderstood the situation he was pulling up into.

"But [Laurence] Miller, the defense psychologist, told the jury that in the moments before Van Dyke had arrived on the scene, he told his partner that he might have to shoot the offender," the Tribune reports.

"Oh my God, we are going to have to shoot the guy," Van Dyke recalled telling his partner during an interview with the psychologist.

"Van Dyke also knew officers had asked for a Taser to subdue McDonald, but he also openly questioned why police didn't shoot the teen after he popped their car tire and scratched a windshield, Miller said.

"Why didn't they shoot him if he's attacking them?" Van Dyke asked his partner, according to Miller.

Of course, he wasn't attacking them.

"During cross-examination Tuesday, Van Dyke did not deny making the comments to Walsh, his partner that night," the Tribune reported.

"I thought the officers were under attack," Van Dyke said. "The whole thing was just shocking to me."

If Van Dyke indeed misunderstood the situation, that might explain - not justify - why he did what he did. I've always wondered if Van Dyke was ever tested for drugs or was having a particularly bad day because he arrived on the scene seemingly super-agitated. Sixteen shots indicate some sort of uneven mental state. In any case, these statements might be the ones that do him in.

"Legal experts, including veteran defense attorney Terry Ekl, who believes Van Dyke did well on the witness stand, told the Tribune that those statements were damning.

"'It showed he had an aggressive state of mind before he even got there,' Ekl said. 'It shows a predisposition. I thought it was significant.'"

*

"Van Dyke faltered at times under cross-examination, saying he couldn't remember certain details, particularly when it came to statements he made to police immediately after the shooting. He grew testy at several points, snapping at the prosecutor to let him finish his answers and addressing her sharply as 'Miss,'" the Tribune reported.

"Van Dyke testified that he started firing at McDonald again, at one point actually aiming at the knife to try to knock it out of the teen's hand. When his weapon was empty, he began to reload because that's what he had been trained to do, but he stopped when Walsh told him it wasn't necessary, Van Dyke testified.

"Jason, I got this," he said Walsh told him.

Van Dyke said he watched Walsh kick the knife out of McDonald's hand. Once that threat was eliminated, he called for help, he told the jury.

"I screamed into the radio, 'We need an ambulance,'" he said.

Assistant special prosecutor Jody Gleason quickly pounced on Van Dyke's version of events during cross-examination, first challenging his account of McDonald raising the knife before being shot.

"Now you sat here for several days," Gleason said. "Where do you see that in the video?"

"The video doesn't show my perspective," answered Van Dyke, repeating a common theme of the defense throughout the trial.

Gleason then showed Van Dyke the computer animation created by the defense that was intended to show the shooting from the officer's perspective. She asked where McDonald lifted the knife in the computer-generated model. Van Dyke said the defense's own video also didn't depict what he saw.

So his testimony was not only at odds with the real-time video we've all seen, but with the animated video that his own defense team made in sympathy with his purported point-of-view.

Toast.

*

"Gleason also questioned why Van Dyke didn't use the six seconds between the time he got out of his squad car and the time he opened fire to move away from McDonald or take cover behind the car.

"In that six seconds, he got a lot closer to me," Van Dyke said.

Gleason pointed out that the video showed Van Dyke took a step closer to McDonald, despite his initial claims that he backpedaled as McDonald came closer.

"I know that now, yeah," he said. "Not intentionally. I thought I was backpedaling."

"What?" Gleason asked with a tone of incredulity.

"Miss, I thought I was backpedaling that night," Van Dyke said.

"You thought you were backpedaling as you're firing shot after shot after shot?" Gleason asked.

"What I know now and what I thought at the time are two different things," Van Dyke shot back.

Van Dyke said during his testimony that McDonald never turned his back on officers, despite prosecutors insisting he was "walking away."

"He could have made a decisive turn and walked in the opposite direction," he said. "He could have thrown that knife away and ended it all right then and there."

Gleason, the prosecutor, rephrased the question moments later.

"And you could have ended it all the minute he hit the ground, correct?" Gleason asked.

Van Dyke said he took that amount of time for him to "reassess" the situation.

"But you testified that even when you reassessed the situation, you continued to shoot him," Gleason said.

"Because to me it seemed like he was getting back up," he said.

I would guess that any sliver of sympathy jurors may have held for Van Dyke evaporated at this point.

*

A couple of more exchanges between Gleason and Van Dyke, via the Sun-Times:

Assistant Special Prosecutor Jody Gleason: And then you continued to shoot him after that?

Van Dyke: I shot at that knife. I wanted him to get rid of that knife.

Gleason: Okay. Let's talk about the knife. You're not trained as a police officer to shoot at somebody's knife, are you?

Van Dyke: No, you're not.

Gleason: You're trained to shoot at center mass, correct?

Van Dyke: Yes.

Gleason: So why did you continue to shoot at his knife? That's not what you're trained to do.

Van Dyke: My focus was just on that knife, and I just wanted him to get rid of that knife. That's all I could think.

*

And:

Gleason: Now, you stopped shooting because your gun was empty, correct?

Van Dyke: Yes.

Gleason: And it wasn't because you thought the threat was over with, right?

Van Dyke: (After a long pause) I'm sorry?

Gleason: It wasn't because you thought the threat was over with, right?

Van Dyke: Between the time I stopped shooting and the time I reloaded, the situation had drastically changed.

Gleason: Really? What changed?

Van Dyke: There was no longer a threat by the time I reloaded my weapon and brought it up to the ready position.

Gleason: Why wasn't he?

Van Dyke: In those couple of seconds he, um, he had stopped moving.

*

"Prosecutors called just one witness in their rebuttal case," the Tribune reported.

"Cook County Sheriff's Officer Adam Murphy was the only officer on the scene to comfort McDonald after the shooting, telling him to hang in there and assuring him paramedics were coming. On Wednesday, Murphy told jurors that he saw a pool of blood around McDonald on Pulaski Road and that the blood was coming from the teen's body - testimony meant to dispute the defense team's suggestion that McDonald died so quickly there wasn't much blood at the scene."

Every defense witness appears to have been successfully rebutted.

*

Now about the jury . . . here are the ones who could hang this thing. Descriptions via NBCChicago.

Juror 1: "On her questionnaire she said she respects police and 'they are just doing their job.'"

Juror 5: "She said she knows about the case from the news and has seen the video. 'I had different thoughts,' she said. 'Why did Laquan keep walking away? Why didn't he stop?'"

Juror 7: "A white male who said he has not seen the video. Though he said on the questionnaire he had not heard about the case, he admitted to the judge he had. He also said, 'I'm just a big supporter of the 2nd amendment. And I have a lot of respect for police officers.'"

He wanted on this jury. How was he allowed when he was untruthful about having seen the video?

Juror 10: The most intriguing juror.

"A Hispanic woman who works for a downtown parking company but is applying to become a Chicago police officer."

Whoa, how is she allowed on the panel? And what a box she's in - she can voted to convict and risk going into the department as a pariah or vote to acquit and be deemed by at least some elements of the command staff as lacking the judgement to be a cop.

But note: "On her questionnaire, she wrote 'no one is above the law.'"

Juror 11: "He said he has seen the video but hasn't formed an opinion."

How do you see that video and not form an opinion?

Juror 12: "A white female who wrote on the questionnaire, 'No matter what your occupation is, if you knowingly did something wrong, you should face consequences.'"

*

Two alternate jurors now dismissed because they won't be needed were leaning toward conviction, the Tribune reports.

"Most definitely I would have said guilty," said one dismissed alternate, a Hispanic man who drives a truck for FedEx. "For me he should have waited a little bit longer. I mean he knew the Taser was coming. That's what did it for me."

And:

The other alternate, a white woman who works in marketing at a downtown law firm, said she was swayed by the fact that other officers on the scene that night didn't feel the need to use deadly force - and McDonald was trying to get away from officers, not charge toward them.

"When he was on a dark street with someone, he popped a tire to try to get away. He hit a car to try to disable it. He wasn't coming at folks," she said. "Where was he actually causing an issue that Jason Van Dyke thought that he needed to use deadly force? I just didn't understand that."

*

"Fraternal Order of Police President Kevin Graham said Van Dyke "gave a very honest, unrehearsed account of what he saw that night," the Sun-Times reports.

If Van Dyke's testimony was unrehearsed, his lawyer should be disbarred.

*

The jury has asked for a transcript of the testimony of Joseph Walsh, Van Dyke's partner that night.

*

Finally, our scary police department:

"If he's convicted, other officers wondered if police would become even more hesitant to do aggressive police work out of fear of being sued, indicted or fired," the Tribune reports.

Really? So CPD should be given carte blanche to commit murder in order for the force to keep their edge?

"The officers, who spoke on the condition of anonymity because they're not authorized by the department to speak to the media, also offered opinions on whether Van Dyke should be convicted, with most of those the Tribune talked to saying they believed he did nothing illegal. Many did think Van Dyke will be fired, however."

*

"Some of the officers interviewed by the Tribune believe a conviction for Van Dyke would be a blow to the police, making officers less proactive on the streets. But others say that type of aggressive policing has already plummeted ever since the dashboard camera video of the McDonald shooting was released by court order in November 2015 on the same day Van Dyke became the first officer in decades to be charged with first-degree murder for an on-duty shooting.

"Because of that, some officers said police have already stepped back on their aggressiveness, only responding to 911 calls over the radio without relying on their street smarts to act on their own."

Great, officers fearing a loss of impunity are now half-assing their jobs.

"It's not going to make a difference because those people have already shut down," said one supervisor who works in some of the city's most violence-plagued neighborhoods. "The damage is done."

Another sergeant disagreed, saying a conviction could still have an impact on police. "Even people who haven't de-policed over the years, they may de-police," the sergeant said.

Did any officers - even just one - say that a conviction would be a win for the department because it would show they are accountable, it would help build trust with the people they serve, and it would be a step forward toward reforming the department?

*

"Another veteran supervisor thinks there's going to be unrest no matter the verdict.

"They were happy when the Bulls won, and the city (nearly) burned to the ground," said the supervisor, who works in a citywide unit. "A lot of people may use the trial . . . to do their nasty deeds."

I wonder who the supervisor means by "they."

-

See also:

"Jason Van Dyke's fellow officers began working to keep him out of trouble almost immediately after he shot Laquan McDonald, and detectives and higher-ranking officers continued to try to protect him even months after the department cleared him of wrongdoing, according to a court document unsealed Thursday," the Sun-Times reports.

-

Comments welcome.



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Posted on October 5, 2018


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