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Sentencing hearing today for Jason Van Dyke, 3+ months after a jury convicted him on second-degree murder and 16 counts of aggravated battery chicagotribune.com/news/local/bre…
I’m expecting extensive legal arguments about what exactly the sentencing range should be — it’s hardly clear-cut, since this wasn’t exactly a typical verdict. Defense arguing for probation, state angling for prison time but hasn’t recommended a particular number.
Each side can also call witnesses - to talk about the impact of the shooting in McDonald’s family on one side, and to vouch for Van Dyke’s character on the other.
Van Dyke himself also has the right to speak on his own behalf.
This comes on the heels of a clean-sweep acquittal yesterday for the three officers accused of a cover-up in the shooting. Different courtroom, different charges, no jury chicagotribune.com/news/local/bre…
Gaughan is on the bench, and Van Dyke has entered the courtroom in his now-familiar bright yellow jail uniform.
Several witnesses have objected to having video and audio taken of them while on the stand; Gaughan has called a recess to discuss/rule on their request behind closed doors.
Also in court today: Darren O’Brien and Jennifer Blagg, Van Dyke’s new defense attorneys. They will work with Van Dyke’s longtime attorney Dan Herbert on the sentencing hearing, then take over to handle his appeal.
O’Brien and Blagg are known for winning the acquittal of Dante Servin, the CPD detective charged in the fatal shooting of Rekia Boyd
Sister Maria Paulina Sterling, a nun from the Van Dyke family’s SW Side parish, is in attendance, praying quietly with rosary in hand.
Re: yesterday’s decision in the conspiracy trial — I’m seeing talk of an appeal in some social media circles.

Not gonna happen. Prosecutors cannot appeal an acquittal.
You legally cannot try someone twice for the same alleged crime, that’s double jeopardy.
McDonald’s family already won a settlement from the city before even filing suit

We're about to get started in earnest. Legal arguments from attorneys first, then a recess, then witnesses in aggravation/mitigation.
Judge directs camera to pan the audience as Van Dyke is brought out -- he in the past has instructed them not to take photos of the sheriffs bringing Van Dyke out of lockup.
He also just said that if there is a disruption, everyone in the gallery is now on video, so if there are any shenanigans "you will go to jail."
Special prosecutor Joseph McMahon saying each of the 16 bullets fired constituted a separate and distinct act, citing Van Dyke's own testimony. "He fired his gun 16 times as he assessed and shot, assessed and shot, and he continued to assess and shoot."
McMahon: While to the layman second-degree murder might sound like the most serious charge, under Illinois law agg batt with a firearm is the more serious crime (hence Van Dyke cannot be sentenced on just the second-degree, as the defense argues)
reminder -- second-degree murder carries 4-20 years in prison, served at 50 percent, and is probationable - prison time not mandatory.

agg batt with firearm is not probationable, mandatory 6-30 years, served at 85 percent.
McMahon asks Gaughan to sentence on 2nd degree as well as agg batt, but notes that those sentences can run concurrently.

If Gaughan finds that certain gunshot wounds caused "severe bodily injury," those counts should run consecutively. he says, however many that is.
But McMahon says the sentence needs to be proportional to the crime, and sentencing consecutively to the minimum for each 16 counts would amount to 96 years -- more than double the 45-year minimum for first-degree murder.
Darren O'Brien is up for the defense. He literally wrote the book on sentencing in Illinois: my.isba.org/store/detail.a…
Van Dyke must be sentenced on just the second-degree murder, O'Brien says - "the lesser harm merges into the greater harm, the woundings merge into the death."
this is interesting -- O'Brien is up there using the prosecution's trial argument as a guideline, ie, each of the 16 bullet wounds caused McDonald's death.

Defense rejected that argument entirely at trial.
"It would be extremely unfair to punish Mr. Van Dyke for shooting and wounding somebody, and having those same wounds be the cause of death, and punishing him for the death too."
We are about to get started again. Also in attendance, by the way, is mayoral candidate Willie Wilson.
Gaughan orders everyone who will testify later in the proceedings to leave the room, they can’t sit through others’ testimony.

Van Dyke’s wife and father get up and leave, as does former FOP president Dean Angelo.

So does McDonald’s great-uncle the Rev Marvin Hunter
First prosecution witness is Vidale Joy, who says in 2005 Van Dyke pulled him over, approached him with gun drawn and shouted racial obscenities at him
“He put the gun to my temple ... he was just infuriated, just out of his mind in my opinion.”
Murmurs of disbelief/derision from Van Dyke’s side of the courtroom during this testimony.
Joy says “I get nervous to the point that I just shut down, I become momentarily catatonic” when he sees police now.
On cross-examination Joy says Van Dyke called him the n-word; defense attorney Dan Herbert pointing out that there’s no allegation in the 2005 complaint he filed against Van Dyke that he used racial slurs
Joy told prosecutors he couldn’t remember the exact words used but on cross said Van Dyke called him a “black-ass n*****”
Herbert says the 2005 complaint Joy filed also doesn’t mention anything about Van Dyke putting a gun to his temple.
Second witness is Jeremy Mayers, another motorist who says Van Dyke pulled him over. This was in 2011.
He did a field sobriety test and his car was searched - he admits to drinking that night but said he was not drunk. Van Dyke handcuffed him, he said.
Mayers says and at one point was alone in the car with Van Dyke. He had a cough drop in his mouth that Van Dyke told him to take out. He refused.

“He turned around and started choking me, trying to get it out.”
Van Dyke choked him for 5-10 seconds with one hand, Mayers said.
Mayers filed a complaint with IPRA but says nothing came of it.

“I can’t even look at the man right now I just think of the night he choked me, he don’t have no remorse for nothing.”
On cross, Herbert pointed out that Mayers eventually pleaded guilty to DUI, hinting that his memory of the night may not be accurate since he was impaired/it was a long time ago.
Mayers conceding that police did find weed on him that night after the search
He also says he put the cough drop in his mouth because he knew it would influence the breathalyzer
Mayers starts talking about the McDonald shooting. “I’m traumatized by what happened on this case. It could have been prevented, sir. It could have been prevented.”

Herbert: “nothing further.”
Prosecution witness 3 is Eric Breathett, who says he was pulled over in 2009 as he drove to Rainbow Beach. A “car club” was in front of him with loud music, swaying in and out of traffic, so he slowed down to put in some distance.
He rolled through a stop sign and squad car pulled him over. One of the officers was Van Dyke.

Prosecutors, as is typical, ask him to point out Van Dyke and describe something he’s wearing.

Breathett chuckles.

“He’s definitely in the right attire.”
Officers told him he was being pulled over for disturbing the peace, though he says he did not have any music on.

There was “unprofessional” back and forth between Van Dyke and the other officers, and they questioned him about recent shootings in the area
He was scared and that triggered an asthma episode, and the officers wouldn’t give him his inhaler, he testified.

He was released from custody after signing a traffic ticket
Herbert: you think he belongs in prison?

Breathett: yes.

Though Breathett says he has not seen the dash cam video. He says Van Dyke deserves prison simply because of what happened when Breathett was pulled over.
Herbert: “you think police mistreat young black males ... fair to say?”

Breathett: in certain neighborhoods, yes.

Again, some of Van Dyke’s supporters in the gallery make quiet scoffing noises.
Next witness is Edward Nance, whom the Tribune wrote about in 2015: chicagotribune.com/news/ct-police…

By @jmetr22b and @JeremyGorner
Nance is openly crying, appears to have difficulty speaking.
Two officers including Van Dyke pulled him over in 2097, he says. When asked to identify Van Dyke in court, Nance breaks down in tears.
“Open this motherfucking door right now,” Van Dyke said right away, per Nance.

He says Van Dyke pulled him out of the car by the arm, dragged him around and “threw me face first on the car” to handcuff him.
Nance says Van Dyke then flipped him over and slammed his back on the car. “He said don’t move, motherfucker, don’t move.”
Van Dyke pushed him onto the floor of a squad car, and his arms “hurt very bad, I couldn’t move my shoulders, I couldn’t move nothing ... (Van Dyke) said shut up and lay down.”
Van Dyke eventually wrote him a ticket for not having a front license plate. “He never even saw the front of my car.”
He didn’t know what happened to his car; when Van Dyke let him go he walked home.
The ticket was thrown out but he never got his mother’s car back, he said.

He eventually had to have surgery for the injuries to his shoulders.
“I can’t sleep at night, I sleep for about an hour hour and a half, and I get up. I have anxiety and PTSD.”
Nance says he still can’t move his shoulders, can’t lift his right arm. He was a referee for high school and junior college and can’t do that anymore. “I was a good official ... I am in constant pain every day.”

Nance is crying, rubbing his left shoulder, rocking back and forth.
Nance is openly sobbing on the stand.
Nance’s IPRA complaint went nowhere. “He went to work the next damn day, like nothing happened.”

Gaughan gives him the chance to take a break, but he says he wants to go on. “I need a napkin and some water.”
Herbert approaches for cross-examination with his usual greeting for witnesses: “how are you doing, Mr. Nance?”

(It’s pretty obvious how he’s doing.)
Herbert questioning Nance about what medication he has taken today. Medicine for anxiety, ADD and a painkiller, he said.
Nance said his PTSD symptoms began after an incident in the Army in 1988 - Gaughan stops Herbert from questioning him too much on the details.
Nance says Van Dyke had someone else’s badge/nametag at the time; he didn’t learn the officer’s name for months later.
Herbert says Nance’s cousin (who was also in the car) had drugs on him, and the car was impounded because it was “used to transport narcotics.”

Nance is incredulous.
Nance got a letter from the police oversight agency a year after he won his civil suit, saying they did not see reason to investigate
Herbert pointing out discrepancies between Nance’s report at the time and his testimony today. Herbert says report states Van Dyke’s partner was the one to first approach Nance
It was confusing at first but “I know exactly what happened to me” when Van Dyke was roughing him up, Nance says.
Nance is not conceding that his initial report alleges other police officers did the things that he attributes to Van Dyke today. He’s reading over his report right now.
The report is simply incorrect, Nance says — and begins laughing. “You’ve got to be kidding me.”
The OPS/IPRA investigator who took the statement didn’t care about what he had to say, Nance said. He is the one who typed out the inaccurate report, says Nance
Herbert pointing out that Nance signed the statement, which Nance concedes.
Next witness is Alberto Luces, who is testifying with the aid of a sign language interpreter. when asked if he could ID in the courtroom the officer who pulled him over he says — he doesn’t have his glasses and can’t see well from a distance.
This is a new one. Gaughan directing him to step out of the witness stand and look around the courtroom. He is walking around the well.
Someone behind me apparently made some kind of gesture with his thumb and got kicked out of the courtroom.
Luces said he tried to identify someone in court but couldn’t see well enough to do so, and 2013 - when this alleged incident occurred — was a long time ago.
Gaughan says without an identification there’s no proof Van Dyke was out there that day.

(Luces testified that the officers who pulled him over twisted his arms and hurt him as he tried to explain that he was deaf)
No further questions for Luces. Without someone to identify Van Dyke as an officer involved, they can’t connect him to the allegations of misconduct.
Next, Rev Marvin Hunter will read a victim impact statement. Hunter, McDonald’s great-uncle, has been a de facto family spokesman throughout the case.
Hunter wrote the statement as if it had been written by Laquan McDonald. (This is unusual.)
“I am a 17-year-old boy. I am a victim of murder ... I am unable to speak in my own voice.”
“In the short time of my life I have worked hard to correct the mistakes that I have made, but in a matter of six seconds he took 16 shots and ended the possibility of this happening forever.”
“Please think about me and about my life when you sentence this person to prison. Why should this person ... be free, when I am dead forever?”
No more prosecution witnesses. Lunch break until 2:30.
First defense witness: CPD Officer Robert Warzocha, who was with Van Dyke when previous witness Mayers was arrested. He says he never saw Van Dyke choke Mayers.
(Mayers said he was choked when he and Van Dyke were alone in the squad, though, I believe)
Warzocha says Mayers never showed signs of injury and didn’t complain of any misconduct
Next defense witness: Kaylee Van Dyke, Van Dyke's 17-year-old daughter. No audio or video feed.
She sits on the stand ramrod-straight, reading a statement she wrote. "I have been bullied teased picked on threatened, you name it, all because my dad did his job."
Van Dyke wiping away tears through her testimony.

"I touch his hand through a piece of dirty glass and speak on a phone that the connection breaks in and out of."
"The media news sources, and politicians have caused this pain for my family and I … my dad is the strongest, most selfless person with the biggest heart."
She was extremely poised on the stand, only breaking into tears when describing the way she can only speak with him in one phone call a day.

Van Dyke was convicted just a few days before her 17th birthday, which made her fall into a depression, she said.
"I do not sleep at night ... I wonder if my dad has pillows or blankets or has even eaten before going to bed. If I do sleep it’s because I cry myself to sleep."
"I love you, Dad," she concludes her testimony, looking directly at him at the defense table.
I am off Twitter duty to start writing, follow @jmetr22b @ChristyGutowsk1 and @StacyStClair for updates
Gaughan is back on the bench, about to announce his sentence. He says he thinks "100 percent" of the people in the room will be disappointed.
Gaughan: Second degree is first-degree murder with a mitigating factor -- not a lesser included offense.

Perhaps a hint that he thinks the agg batts should in fact merge into the second-degree, which is exactly what the defense asked for.
Van Dyke will be sentenced on just the second-degree murder count - a big win for hte defense
It was all one act, Gaughan rules: "one act, one sentence, one crime"
BREAKING -- Jason Van Dyke sentenced to 81 months in prison for the second-degree murder of Laquan McDonald. That's about 6.75 years.
Second-degree murder is served at 50 percent, meaning he will get day-for-day credit assuming good behavior.
He must serve two years “mandatory supervised release” (aka parole) after the sentence is complete.
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