(CBS) — For the first time, the attorney representing Jason Van Dyke takes us through the video of the shooting frame by frame and compares it with what Van Dyke told him he saw and felt.
Attorney Dan Herbert spoke with CBS 2 Chief Correspondent Jay Levine. Some of it was predictable, some, revealing, but mostly that the video doesn’t tell the whole story.
Dan Herbert’s view of the video was enhanced by his conversations with Van Dyke.
“My client gets out of his vehicle and he is exposed, he has no shielding. It looks like he does not have a very good opportunity to retreat and it’s clear that the individual is not complying with his direction to drop the knife to get on the ground. At some point I know Jason felt that this individual was going to come and attack him or attack one of his partners on the scene,” said
Herbert was called to the scene that night, assigned by the FOP to respond to any officer involved shooting.
When asked what threatening move did McDonald make, Herbert responded, “There is not going to be an image where it shows this individual running towards a police officer. It didn’t happen and that was never maintained by my client but I think it’s unfair to look at it frame-by-frame…it has to be viewed in the totality of the circumstances… prior to my client even getting on the scene…he knew that this individual had stabbed the windshield of a police vehicle where police officers were sitting in there. He knew that this individual had punctured a squad car tire where police officers were in there…I would say it’s in the forefront of his mind.”
He knows that because Van Dyke told him, just hours after the shooting.
“The threat is not eliminated at the point at which the guy is on the ground,” Herbert said. “The individual made a movement at some point caused Jason to fear that the individual was going to get up and stab him so he fired that second volley of shots.
A judge or jury will make its own on whether or not there was still reason to fear a fallen McDonald, a decision which could determine Van Dyke’s guilt or innocence.