In a choice with potentially far-reaching consequences for the biggest Cook County murder case in years, Chicago police Officer Jason Van Dyke's attorney announced Friday that a jury will decide his fate.
The long-awaited decision came just days before opening statements and after 12 jurors and five alternates had already been selected – an extraordinarily late date for such a consequential choice.
Most legal experts expected him to take a bench trial, as most Chicago police officers charged with criminal wrongdoing traditionally have done. Conventional wisdom holds that judges can more easily strip the emotion from such highly charged cases and focus on the complicated legal questions at hand.
Van Dyke, however, presumably saw something in the jurors that suggested he had a better chance of a straight not-guilty verdict with them deciding the case.
"I think he's looked at his jury, now that they've all been picked, and said, 'I don't want to do any jail time. I'm going for broke, I'm rolling the dice and I'm going for an acquittal,'" Irving Miller, a former Cook County prosecutor and longtime criminal defense attorney, told The Chicago Tribune Friday.
Van Dyke is the first Chicago police officer in decades to be charged with murder in an on-duty fatality. Dashboard camera video of him shooting 17-year-old Laquan McDonald 16 times as the teen appeared to walk away from police roiled the city on its court-ordered release more than a year later.
Friday's announcement would seem to conclude a lengthy legal face-off between the defense and Judge Vincent Gaughan. The judge had delayed ruling on a defense request to move the trial from Chicago until after jury selection. The defense, in turn, postponed its decision on whether to have a jury decide the case at all.
Gaughan continued to hold off ruling Friday on whether to move the trial out of Cook County, saying he would do so after he swore in the 12th juror and five alternates when they return to the courthouse Monday. It appears highly unlikely that Gaughan would agree to move the trial at this point, however.
Under Illinois law, Van Dyke could unilaterally switch to a bench trial at any point before the 12th juror was sworn in. So far, only 11 of the 12 have taken the oath. That means the defense technically could still change course Monday morning.
The decision rested solely with Van Dyke. With this particular burden lifted, Van Dyke – who looked sleep-deprived and often slipped into a thousand-yard stare during jury selection – appeared more relaxed during Friday's brief hearing. He smiled as he walked into the courtroom and looked better rested than he had in weeks. When court adjourned for the day, he hugged attorney Daniel Herbert and smiled at his father.
The 12 jurors picked for the racially charged case – Van Dyke is white and McDonald was black – include just one black. The remainder of the jury is composed of seven whites, three Latinos and one Asian-American.
While the defense attempted to strike several of the current jurors during the selection process, some indicated strong support for law enforcement during questioning. One juror, a Latino woman, is even an aspiring Chicago police officer.
If the jury does convict him, Van Dyke would have a better chance on appeal than if he was found guilty by Gaughan, Miller said.
"Appellate courts are much more likely to reverse a jury verdict for whatever reason than they are to reverse a judge's ruling," Miller said. "Judges are presumed to know the law and to apply the law correctly. That's not the case with a jury."
The defense now faces another key decision, said longtime defense attorney Robert Loeb, who teaches at DePaul University College of Law.
"The biggest issue now is to what extent is (the defense) going for a total not guilty from the jury and to what extent will he submit the less serious offense of second-degree murder to the jury for their consideration," he said.
The unique way Gaughan handled the jury questioning means the defense got a rare preview of the jurors before choosing whether to have them decide the case. They must have liked something about the makeup of the jury, Loeb said.
"The defense has confidence that at least one juror will find justification for the shooting," he said in reference to the jury needing to be unanimous to convict.
Still, like many legal analysts familiar with how cases go in Cook County, Miller said he was surprised by Van Dyke's decision, particularly because Gaughan is considered a "tough but fair" judge who would decide the facts of McDonald's shooting without emotion.
As far as legal strategy, Miller said it's simple: Put the jury in Van Dyke's shoes that night and convince them that no matter how bad the video might look, he was "a police officer doing what he was trained to do."
"He's out there on the street. There is someone standing there with a knife," Miller said. "He didn't know what was going on. He reacted instantly, and that's not murder."
Van Dyke is believed to be the first Chicago police officer charged with an on-duty murder to opt for a jury to hear his case. The last time an officer stood trial for murder was 37 years ago – and it was a judge who heard the case.
Officers Louis Klisz and Fred Earullo were charged in the 1980 beating death of 51-year-old Richard Ramey after he was arrested for smoking on a CTA platform.
After hearing the evidence, Judge Arthur Cieslik ruled there was reasonable doubt whether the officers had "clear intent" to kill Ramey. He found them guilty instead of involuntary manslaughter. Klisz got eight years in prison, while Earullo was sentenced to less than three years.
More recently, two Chicago police officers accused of wrongdoing in other high-profile Cook County cases were acquitted in bench trials. But some of the biggest court victories elsewhere in the country for law enforcement officers involved in fatal shootings came from juries – including the officers who shot Philando Castile in Minnesota and Terence Crutcher in Oklahoma.
However, just last month a Texas jury convicted a former police officer in the slaying of an unarmed black teen.
If history is a good indicator, Van Dyke is taking a risk tapping a jury to decide his fate rather than a judge.
Of the 94 nonfederal sworn law enforcement officers in the country who have faced murder or manslaughter allegations for on-duty fatal shootings dating back to 2005, 33 cases resulted in convictions, but none were decided by a judge, according to Philip Stinson, a Bowling Green State University associate professor of criminology.
Of the 33 convictions, 16 of the officers pleaded guilty and 17 were found guilty by a jury. The convictions were often for a lesser offense, Stinson said.
The criminal cases for 42 of the officers ended in acquittals, dismissals or in one case a grand jury passed on charges.
Stinson said the criminal cases for 19 of the 94 officers still are pending. The Van Dyke case is counted among those 19 – and is the only one of the 94 from Illinois.
Although Van Dyke's decision runs contrary to Stinson's data, the researcher cautioned each case is unique and different.
"There's no right or wrong answer here," Stinson said. "I don't know what the (defense's) decision process was, but I'm sure these are very experienced trial lawyers and I think you just have to follow your gut sometimes."
The researcher also chronicled whether the alleged offender in the fatal shooting cases was armed with a dangerous weapon – such as a knife in McDonald's case.
Of the 33 convictions, only 18 percent involved a weapon. Of the 42 non-convictions, 33 percent of those cases involved someone armed with a weapon.
With that history in the background, community activists are watching the Van Dyke proceedings closely.
"For me, it's about three years in the making," said William Calloway, who is part of a coalition of groups organizing demonstrations during the trial. "I'm cautiously optimistic about this trial."
Gaughan noted in court Friday that protesters have been peaceful, a point Calloway echoed and urged to continue after the hearing.
" 'Justice for Laquan' is a nonviolent movement. It's a peaceful movement," he said. "Anybody that comes out to demonstrate, we ask you to come out and be aggressive. Come out and be passionate. Come out and exercise your First Amendment (rights), but please come out and be peaceful."
Calloway said he would have liked to see more diversity on the jury – a point he made while urging black residents to register to vote to boost diversity in potential jury pools.
Van Dyke, 40, a veteran of nearly 13 years with the Police Department at the time of the shooting, faces six counts of first-degree murder, 16 counts of aggravated battery and one count of official misconduct for the October 2014 shooting.
(Chicago Tribune's Stacy St. Clair contributed.)