Motion to move Chicago cop’s trial blames 'sensational media coverage'

A long-sealed motion by Officer Jason Van Dyke seeks to move his trial for the fatal OIS of Laquan McDonald outside Cook County


By Megan Crepeau
Chicago Tribune

CHICAGO — A long-sealed motion by indicted Chicago police Officer Jason Van Dyke seeks to move his trial for the fatal shooting of Laquan McDonald outside Cook County, alleging that “extensive, inflammatory and sensational media coverage” has made a fair jury trial here impossible.

The motion, finally made public three months to the day after it was filed, also paints the officer as the victim of ambitious politicians, saying public comments by elected officials amounted to “the public execution of Jason Van Dyke.”

Jason Van Dyke approaches the bench as his case is called on November 2, 2016, at the Leighton Criminal Court Building in Chicago. (Nancy Stone/ Chicago Tribune/TNS)
Jason Van Dyke approaches the bench as his case is called on November 2, 2016, at the Leighton Criminal Court Building in Chicago. (Nancy Stone/ Chicago Tribune/TNS)

“It can be argued that there is no case in history that presents a more compelling example of the necessity for a change of place of trial,” the 31-page filing concluded.

The motion was filed March 28 by Daniel Herbert, Van Dyke’s lead lawyer, only to be quietly unsealed this week by Judge Vincent Gaughan, who has put extraordinary restrictions on the release of evidence and testimony in the high-profile case. It was made public Thursday.

The judge has been pushing for a summer trial, but a hearing on the motion to move the trial to another county in Illinois probably won’t take place until August, it was revealed Thursday. A comprehensive report by a California consultant hired by the defense to buttress its motion has taken months to complete and now should be ready by July 10, lawyers said. The judge gave special prosecutors until July 24 to respond in writing to the motion — and another week for Van Dyke’s lawyers to reply to that.

The motion is premised on Van Dyke seeking a jury trial, but that call has yet to be made by the defense — and would go against long precedent at the Leighton Criminal Court Building for Chicago cops charged with misconduct who typically let judges decide their fate, as the Tribune noted in a front-page article this week.

Gaughan unsealed the motion to move the trial weeks after the state Supreme Court, responding to objections by the Tribune and other news organizations, ordered the judge to stop requiring that court documents in the case be filed directly to his chambers. Typically, filings are made publicly in the circuit clerk’s office.

The judge’s secretive measures continued Thursday. Before any substantive discussions took place in his courtroom, he held an hourlong private meeting with attorneys in his office. Later, for the third time, he cleared the courtroom of reporters and spectators to hold a hearing in private about questionnaires that prospective jurors will fill out.

A Tribune reporter who tried to sit outside the courtroom doors during the closed hearing was told by sheriff’s deputies to move down the hallway.

Citing case law, including the infamous press coverage of the Dr. Sam Sheppard murder case in Ohio in the 1950s, Van Dyke’s lawyers criticized the news media, particularly the coverage before a video of the shooting was made public.

“The fury spread like a wild fire,” the motion said. “In an attempt to one-up its competitors, news agencies were frantically publishing information with stronger adjectives and more sinister angles. It was a classic example of a story getting better each time it was repeated.”

But the defense saved its harshest criticism for the elected officials, community activists and religious leaders it said convicted Van Dyke with their public comments.

It singled out Mayor Rahm Emanuel and activist the Rev. Michael Pfleger but was especially critical of then-State’s Attorney Anita Alvarez, alleging she charged Van Dyke in late 2015 to revive her “sagging” re-election campaign. The allegations against Alvarez mirrored earlier attempts by the defense to have the judge throw out the indictment against Van Dyke.

The motion went on to point out that Chicago Public Schools sent a letter about the release of the shooting video to every parent or guardian of a student and implemented a lesson plan to help students in the furor that followed.

Even reports by the U.S. Department of Justice and Emanuel’s Police Accountability Task Force, both highly critical of police practices, drew blame from Van Dyke’s lawyers.

There’s no disputing that Van Dyke’s case has been a watershed moment for Chicago and its Police Department. The police dashboard camera video — released by court order on the same day Van Dyke was charged in November 2015 — showed Van Dyke shoot McDonald 16 times as the black teen walked away from police, contradicting officers’ reports that McDonald had lunged at officers with a knife. The video spurred widespread protests, the ouster of the police superintendent, Alvarez’s defeat and the damning report by the Justice Department.

The defense motion said the video has been viewed more than 4 million times on YouTube.

If the defense succeeds, the trial could be moved to another county or jurors could be selected in a different part of the state and brought to the Leighton Criminal Court Building for the proceedings. The motion does not specify which course of action the defense would prefer nor does it suggest a county where the case should be heard.

Such motions are rarely granted, but two of the most high-profile murder cases in modern Cook County history are exceptions. Richard Speck, who was convicted of killing eight student nurses in a town home on Chicago’s Southeast Side, had his trial moved to downstate Peoria half a century ago. And jurors for the 1980 trial of John Wayne Gacy Jr., who was convicted of killing 33 young men and boys in the 1970s, were selected in Rockford, but the trial was held in Chicago.

Meanwhile, in a motion filed Thursday, special prosecutors sought to block the defense from using an animated video at trial.

The 30-second video claims to depict “the path of travel” of the first five of the 16 bullets Van Dyke fired at McDonald, according to the motion.

But the video is “inaccurate and misleading,” prosecutors said. It shows Van Dyke standing still when, in fact, he was walking toward McDonald by the time he fired the fifth shot, according to the motion.

Prosecutors noted the defense’s own pathologist concluded that there was no way to tell in which order the gunshots hit McDonald.

The animated video has not been released to the public.

In addition, Van Dyke’s lawyers indicated Thursday that they would make an additional attempt to introduce more evidence about McDonald’s allegedly violent history and character. Gaughan has already ruled that half a dozen witnesses could testify about the teen’s purportedly violent past.

©2018 the Chicago Tribune

McClatchy-Tribune News Service

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