Chicago LEO loses bid to bring in different judge to decide if trial should be moved

Lawyers for Officer Van Dyke alleged that the enormous publicity surrounding Van Dyke’s case makes it impossible to find an impartial jury in Cook County


By Megan Crepeau
Chicago Tribune

CHICAGO — The presiding judge of Cook County’s criminal court on Tuesday shot down an unorthodox request by lawyers for indicted Chicago police Officer Jason Van Dyke to bring in a different judge to decide just one issue: whether to move the hot-button trial outside Cook County.

Van Dyke’s lead lawyer, Daniel Herbert, had alleged that the judge presiding over the upcoming first-degree murder trial had already made up his mind to keep the proceedings in Chicago.

But Judge LeRoy Martin Jr., presiding judge of the criminal division, ruled Tuesday that Illinois law doesn’t allow a different judge to be brought in to decide only one pretrial issue — and that even if it did, Herbert’s arguments of bias on the part of Judge Vincent Gaughan weren’t persuasive.

“I just don’t believe that the facts as argued here today are sufficient to show that the judge has made up his mind,” Martin said.

Herbert conceded to Martin that the defense strategy was unusual, noting that he had not seen anything similar attempted in other cases.

“It is the very first time I’ve heard that argument, so it doesn’t surprise me that you could not find a case,” Martin said.

The trial is scheduled to begin Sept. 5.

Van Dyke’s attorneys allege that the enormous publicity surrounding Van Dyke’s case makes it impossible to find an impartial jury in Cook County. The case has been under intense scrutiny since November 2015 with the court-ordered release of police dashboard video showing Van Dyke shooting teenager Laquan McDonald 16 times.

Gaughan has scheduled a hearing for Friday on whether the trial should be moved to another county, but attorneys at times veered into arguments Tuesday on that matter in front of Martin.

For the first time publicly, Herbert termed as insufficient one possible option — picking jurors in another county and holding the trial at the Leighton Criminal Court Building. He cited concerns that jurors could be prejudiced by protests outside the courthouse, perhaps even have their safety put at risk.

“From a practical standpoint, if you go to a different county, judge, there’s no doubt that the protesters will be much more minimal, if any,” he said.

Van Dyke’s lawyers did not want Gaughan thrown off the case altogether, only for a different judge to rule on whether the trial should be moved elsewhere.

Martin decided the issue after Gaughan earlier Tuesday referred the matter to him. That is the typical procedure in more standard requests that a judge be “substituted” from a case because of prejudice.

In a written response last week, special prosecutors called the defense request “absurd,” saying Van Dyke’s lawyers had taken comments by Gaughan “out of context” to suggest he had already decided against moving the trial.

While requests to move a trial because of prejudicial publicity are rarely filed or granted, Van Dyke’s lawyers have argued this is the case that should be the exception.

Bryan Edelman, a California-based consultant hired by the defense, concluded that McDonald’s shooting “remains seared in the public’s consciousness” more than 21/2 years after the release of the graphic video.

Edelman, whose full report was made public Tuesday, is expected to testify for up to two hours at Friday’s hearing.

Also Tuesday, Gaughan rejected a bid by attorneys for several news organizations, including The Chicago Tribune, that filings he had sealed before May, when the state Supreme Court ruled in the news media’s favor, be made public.

In the decision, the state’s Supreme Court ruled that Gaughan must end his practice of routing every court filing to his chambers, bypassing the Circuit Court clerk’s office, where the documents are publicly available.

Gaughan has taken extraordinary measures to control the release of information, citing his concern for Van Dyke’s right to an impartial jury even though it’s unclear if the judge or a jury will decide the officer’s fate. He has “gagged” lawyers from speaking publicly, repeatedly held closed-door meetings in chambers with lawyers and cleared the courtroom of reporters and spectators to hear arguments and testimony.

On Tuesday, when attorneys for the media attempted to raise concerns about Gaughan holding the off-the-record sessions with lawyers behind closed doors — as he did for a few minutes again Tuesday — Gaughan quickly put an end to the discussion.

“All right, move on with that,” he said. “That’s not happening, all right? Come on. Let’s go.”

©2018 Chicago Tribune

McClatchy-Tribune News Service

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