CHICAGO (CBS) — A sentencing hearing is underway for former Chicago police officer Jason Van Dyke, who has been convicted in the 2014 shooting death of Laquan McDonald.
In October, a jury found Van Dyke guilty of second-degree murder and 16 counts of aggravated battery. Van Dyke arrived in court shortly after 9 a.m., wearing an yellow jail jumpsuit. He was unshaven, and appeared to have lost a significant amount of weight since his conviction.READ MORE: Chicago Weather: Rain Tapers Saturday Night, But More Scattered Showers Sunday
In a sentencing memo submitted to the court this week, defense attorneys have asked Judge Vincent Gaughan to sentence Van Dyke to probation, or at most the minimum six-year sentence for aggravated battery, and continued to blame McDonald for what happened the night of the fatal shooting. The defense also submitted nearly 200 letters asking the judge for leniency; including letters from fellow officers, neighbors, friends, and Van Dyke’s wife and daughters.
Special Prosecutor Joseph McMahon did not recommend a specific sentence for Van Dyke, but did argue the officer should be sentenced on every count of aggravated battery, though not necessarily consecutive sentences for all 16 counts. Prosecutors have not recommended a specific prison term, but have suggested the judge could sentence Van Dyke to as little as 18 years.
CBS 2 has live updates from the hearing:
Judge Vincent Gaughan sentenced Van Dyke to 81 months in prison, or a little more than 6 1/2 years.
Before announcing the sentence, Gaughan told the packed courtroom “I assume 100 percent of everybody is going to be disappointed” in the decision.
Rejecting the prosecution’s request to sentence Van Dyke the aggravated battery charges, which carry a longer possible sentence, Gaughan said he would enter his judgment on the second-degree murder count.
“Is it more serious for Laquan McDonald to be shot by a firearm, or more serious to be murdered by a firearm?” he asked, stating that the distinction was a common-sense one in this case.
After hearing all the testimony, Judge Vincent Gaughan said he would take a five-minute break in his chambers before announcing his ruling.
Jason Van Dyke was given the last word at the sentencing hearing before Judge Vincent Gaughan ruled on his sentence. The former police officer stood and read a brief prepared statement, calling the day of the shooting the worst day of his life.
“I have prayed daily for the soul of Laquan McDonald,” Van Dyke said. “It was due to my actions that the McDonald family has suffered pain”
“As a god fearing man and father, I will have to live with this the rest of my life,” he added. “The last thing I ever wanted to do …was to shoot Laquan McDonald.”
“No one wants to take someone’s life, even in defense of their own. It was a choice I will have to live with forever,” he concluded.
Defense attorney Darren O’Brien said Van Dyke should not go to prison, arguing the judge should sentence him only to probation, and as the defense did throughout the trial, blamed McDonald for what happened the night of the shooting.
O’Brien said McDonald committed several serious crimes before the shooting
“Everything that happened was set in motion by Mr. Mcdonald,” O’Brien said. “Those particular factors scream out for probation.”
He also said, while prison is dangerous for anyone, it is “doubly or quadruply dangerous for a former police officer.”
O’Brien also noted that the shooting was the only time Van Dyke ever drew his weapon on duty.
Closing arguments begin. Prosecutor Joseph McMahon acknowledged the impact a prison sentence has on families, but asked the judge for 18 to 20 years.
“Van Dyke’s family is not unique in that situation,” McMahon said. “He must be held at the same standard and face the same consequences.”
McMahon said Van Dyke’s actions were devastating not just for Laquan McDonald, but the entire community, including other police officers.
“Jason Van Dyke betrayed his fellow police officers. His conduct was so egregious, so different than every other police officer on that scene. That is why we’re here tonight,” he said.
Van Dyke’s defense attorney reads a letter to the court from Van Dyke’s 12-year-old daughter
Van Dyke’s wife, Tiffany, testified about the impact the case has had on the family, financially and emotionally.
“My life has been a nightmare. My life has been turned upside-down, inside-out,” she said. “Life is torture. My heart is broken.”
The two have been married for 17 years, and a couple for nearly 20 years.
“My husband is my everything. He is my other half. He’s my heart,” “My husband is a very kind, gentle man. He would give you the shirt off his back. He loves with all of his heart. There is no malice in him. There is no hatred to my husband. There is no racism.”
She described her husband as a “great, dedicated police officer.”
Defense attorneys asked Tiffany Van Dyke what concerns her about her husband facing the prospect of prison.
“My biggest fear is that somebody will kill my husband for something he did as a police officer, something he was trained to do. There was no malice, no hatred on that night. It was simply a man doing his job,” she said. “My other fear is that I will never see him again, my children will never see him again.”
Tiffany Van Dyke said the case has devastated their two daughters.
“He is their absolute everything. He is their life, and they were torn apart,” she said. “They don’t feel safe in our own home.”
Tiffany Van Dyke said their children don’t sleep or eat, and have nightmares, and are bullied at school.
“The last name Van Dyke is not a name that goes well within the city of Chicago,” she said.
She begged the judge to sentence her husband only to probation.
“Please take into consideration that my husband is a man, he’s a human being,” she said. “He has paid the price. He has paid the ultimate price. He will no longer be a police officer. He will no longer be able to get gainful employment. His life is over.”
Chicago Fraternal Order of Police President Kevin Graham said Van Dyke is a “quality person,” and said he’s never heard another officer say a bad word about him.
“I think I’m a fairly good judge of character after being a police officer for more than 35 years,” Graham said. “He is a quality individual who cares about society, the people that he serves, and the people he works with.”
Graham said the case has left many officers wondering what they are supposed to do if they are confronted by a person armed with a knife.
“They are hesitant when they go out into the street,” he said. “They don’t want to be sitting his shoes.”
Graham said he knows it bothers Van Dyke that McDonald died, but said the former officer should not face a lengthy prison sentence for what happened.
“If justice is served, he will not get a long sentence. Because you put someone in prison for something that they are responsible for. And the Chicago Police Department owns a piece of responsibility,” he said.
Van Dyke’s father, Owen, who has been in court for every hearing in the case, described his son’s childhood, saying he was an honor roll student, who played two musical instruments, and was on the football team.
He said his son was tolerant of other people’s rights, and was among several officers who were part of President Barack Obama’s security detail for his second inaugural parade.
“I don’t believe he went this far in the Police Department on luck,” he said.
“I hope you find some compassion in this case,” he added. “Jason is not the person that is described by the prosecutors.”
Van Dyke’s sister, Heidi Kauffunger, testified they were very close growing up, and he became her role model.
“He was always there whenever I needed anything,” she said. “He’s a very loving brother, father, son, uncle and friend.”
She said Van Dyke would always call from work to say good night to his daughters, and if he was home he would help them with homework and put them in bed.
“Jason is a rule follower, never got in trouble. He always wore a watch growing up. When our parents would say be home by a certain time, he was always there,” she said.
Kauffunger said their father had an air horn he would blow outside their house to call them home, but her brother never needed it, because he was always home on time.
She also described the bullying Van Dyke’s daughters have faced, including threats at school, and people writing their names and “16 shots” on their desks.
Kauffunger said, if Van Dyke goes to prison, his family will bear the weight of the sentence as well.
“It’s going to be difficult for Tiffany and the girls to survive,” she said.
Van Dyke’s brother-in-law, Keith Thompson, testified about their close friendship, noting they both have two daughters who are the same age, and are best friends.
“He’s a great father. He’s a stand-up man. He provides, protects, whatever he can,” he said. “I always called him the gentle giant. He’s always the one to calm down a situation.”
He said he promised Jason he would treat his daughters like his own while the former officer is in jail.
“I would ask the court to just consider everything he’s already lost,” Thompson said.
Thompson asked the judge to sentence Van Dyke to time served, saying a prison sentence would destroy his family
“I would just ask that, if he goes to prison, this is going to be a tragic outcome for his family,” he said.
Thompson, who is black, also said he does not believe Van Dyke is racist.
“Absolutely not,” Thompson said.
The defense’s fifth witness was former officer Dean Angelo Sr., who also was president of the Chicago Fraternal Order of Police for three years.
Angelo said he became friends with Van Dyke shortly after he was charged with murder, and tried to help get him a job working on a number of loading docks. The FOP then hired him as a janitor, and he worked there until he was taken into custody upon his conviction.
“He is a big, gentle kid. Everybody’s a kid to me at this age. He’s a hard worker. He’s dedicated. He’s a good dad. He’s religious. He’s quite loyal,” Angelo said. “He is very dependable, hard-working, beat me into the office most of the time.”
“He’s not the person that people think he is because of this incident,” Angelo added.
Angelo also testified that Van Dyke had to shut down a business she ran, due to threats the family received, and the family wasn’t able to make up for all of the lost income, so the police union helped them get insurance coverage.
Angelo described the night Van Dyke shot McDonald as a “perfect storm” of events.
“I know this wasn’t something he set out to do. This was a situation that arose, for lack of any other description, from lack of compliance,” he said, referring to McDonald ignoring orders to drop his knife.
Angelo said Van Dyke wouldn’t be in court if he’d fired only two shots, and the “emotional attachment” of the 16 shots he fired was the only reason he was there.
Retired police officer Kenneth Watt, who worked with Van Dyke several years ago at the Branch 49 courthouse, said Van Dyke as a good man and a good police officer.READ MORE: At Least 11 People Shot, 1 Killed In Gun Violence In Chicago This Weekend
“That’s the highest compliment you could say of another police officer,” he said. “Never had too many beefs or nothing, just went out there and did his job.”
“He did what he was trained to do, and that’s what got him in this mess,” he added. “People get the police that they seek, And God help the city of Chicago.”
Assistant special prosecutor Joseph Cullen took issue with Watt saying Van Dyke did what he was trained to do when he shot McDonald.
“Was he trained to shoot young men who were laying on the ground just twitching?” Cullen asked.
“You are trained to shoot until the threat is over,” Watt said.
“When a man is laying on the ground, with the ability to do nothing but twitch, is that a threat?” Cullen asked.
Watt said he wasn’t there when Van Dyke shot McDonald, so he couldn’t say whether the teen was a threat.
The defense’s third witness was retired Chicago Police Cmdr. Leo Crotty, Van Dyke’s former commander, who described Van Dyke as a “pretty good officer.”
“He was very eager, of course, like most officers are,” he said.
Crotty said it was a privilege to work with Van Dyke.
However, he acknowledged he hasn’t worked with Van Dyke since 2005, and has rarely seen him since then.
Jason Van Dyke’s daughter, Kaylee, took the stand, but asked that there be no video or audio broadcast of her testimony. She described being bullied over the past few years, and missing her dad on birthdays and holidays after he was taken into custody upon his conviction, and losing friends “all because my dad did his job.”
“My heart sincerely goes out to the (LaQuan) McDonald family, but it’s time to bring my dad home,” she said.
The defense’s first witness of the day was Officer Robert Warzocha, who was working with Jason Van Dyke on March 19, 2011, when they arrested Jeremy Mayers.
Mayers testified earlier that Van Dyke choked him when he refused to spit out a cough drop, and later twisted Mayers’ arm.
Warzocha said he never saw Van Dyke choke Mayers, or twist his arm, and didn’t see any signs of physical abuse when Mayers was being processed, and Mayers didn’t complain about Van Dyke’s behavior.
“Mr. Mayers did not complain to me about any type of physical abuse,”
However, prosecutors pointed out Warzocha was not with Mayers and Van Dyke the entire time after the arrest.
Rev. Martin Hunter, McDonald’s great uncle, took the stand Friday afternoon to deliver a victim impact statement on behalf of the family. He said he wrote the statement as if McDonald wrote it.
“I’m a 17-year-old boy. I’m a victim of murder,” he said.
“I am unable to speak with my own voice for the crimes of which I was accused and suspected,” Hunter said, adding that Van Dyke “decided that he would become judge, jury and executioner.”
“The story of my life is that, in the short time of my life, I have worked hard to correct the mistakes that I made, but then in a matter of six seconds he took 16 shots and ended the possibility of this happening forever,” he added.
“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?” he said.z
The state’s fifth witness at sentencing was Alberto Luces, a deaf man who uses sign language, and testified he was pulled over by Van Dyke and another officer in 2013, but did nothing wrong. However, his testimony was cut short, because he also has poor vision, and was unable to identify Van Dyke in court to confirm he was the officer who pulled him over.
The prosecution’s fourth witness was Edward Nance, 49, who tearfully recalled being pulled over by Van Dyke in July 2007 as he and his cousin were driving home. Nance repeatedly had to pause and collect himself before answering questions about the encounter.
Nance said, after he pulled over, Van Dyke tried to open his door, and twice shouted at him “open this motherf***ing door right now.”
He didn’t want to open the door, asking why he had been pulled over, and then his cousin unlocked the doors. Nance said that’s when Van Dyke opened the door, grabbed him by the arm, dragged him out, slammed him face-first against the side of his car, and handcuffed him.
Nance said Van Dyke continued cursing at him, and he asked why police had pulled him over. Nance said Van Dyke then dragged him by his arms and shoved him face down into the back seat of his squad car.
“I couldn’t move,” Nance said. “He had to push me further. I was across the floor of the back seat.”
When Nance complained that he was in pain, he said Van Dyke told him to shut up.
Nance said he was in the back seat of the car for 20 to 30 minutes before Van Dyke pulled him out again, and by then his car and his cousin were gone. When he asked Van Dyke what happened, the officer again told him to shut up, and told him to go home, before stopping him and giving him a ticket.
After he was sent home, Nance said he continued to have pain in his shoulders for months, and needed rotator cuff surgery on both shoulders. He said he also suffers from anxiety, attention deficit disorder, and post-traumatic stress disorder. Although he said he had PTSD from his time in the military before his run-in with Van Dyke, he didn’t need medication for it until after that night.
“I can’t focus,” he said. “It brings back a lot of stuff. I just try to deal with it. I see a couple psychiatrists.”
Nance said he is still on hydrocodone and muscle relaxers for his physical pain, and several other medications for his anxiety and PTSD. He said he can no longer work as a referee for high school and college basketball and football.
Nance filed a federal lawsuit against Van Dyke and the city over the incident. According to published reports, he won $350,000 in damages after a jury trial. He said he also filed a complaint with the Independent Police Review Authority, but the agency took no action against Van Dyke.
“He went to work the next damn day like nothing happened,” he said.
During cross-examination, defense attorney Daniel Herbert pointed out discrepancies between Nance’s complaint and his testimony on the stand, but Nance insisted the official report on his complaint is incorrect.
“I know exactly what happened to me,” he said.
The prosecution’s third witness was Eric Breathett, who was pulled over by Van Dyke in July 2009, as he was driving near 79th and Stony Island, heading to Rainbow Beach. Breathett said he was told he was being pulled over for disturbing the peace, even though his radio was not on at the time.
While in custody, Breathett said Van Dyke and his partner acted in an “unprofessional” manner, repeatedly urging him to admit to disturbing the peace, questioning him about shootings in the area, and denying him his inhaler when he started having an asthma attack.
Breathett said he was released from custody after signing a traffic ticket.
When Breathett identified Van Dyke in court, he said the former officer was “definitely in the right attire. He’s in the County ‘fit,” referring to Van Dyke’s jail uniform.
Breathett said he believes Van Dyke belongs in jail for what happened the night he was pulled over. He said he knows why Van Dyke is in jail now, but was referring only to his behavior during the traffic stop, and hasn’t even seen the video of Van Dyke shooting McDonald years later.
As their second witness, prosecutors called Jeremy Mayers, who was driving on 64th and Cottage Grove on March 19, 2011, when Van Dyke and two other officers pulled him over.
Mayers said Van Dyke first told him he had not used his turn signal, then said his license plate light was not working, then said his muffler was too loud.
He stepped out of the car, and Van Dyke said he smelled alcohol on his breath, so officers conducted field sobriety tests, and then found marijuana in the vehicle. Mayers admitted he had been drinking, but did not believe he was not intoxicated.
Mayers said he was arrested, handcuffed, and placed in Van Dyke’s squad car. After arriving at the police station, Van Dyke told him to remove a cough drop, but he refused, and Van Dyke started choking him for 5 to 10 seconds.
“He turned around and started choking me, trying to get it out,” he said. “He stopped my breath a little bit.”
Mayers admitted he put the cough drop in his mouth, because it would affect his breathalyzer test. However, he said it took a couple hours and four tests before his blood alcohol level registered at exactly the legal limit.
He said he later filed a complaint about Van Dyke about the officer choking him, and twisting his arm while removing his handcuffs.
“I can’t even look at the man right now. I just think of the night he choked me. He didn’t have no remorse for nothing,” he said. “I’m still dramatic about the guy choking me, okay? … I’m traumatized by what happened in this case.”
Mayers said the Independent Police Review Authority ultimately found no evidence to support his complaint, “but that don’t take away that he choked me.”
The prosecution’s first witness was Vidale Joy, an author and poet who was pulled over by Van Dyke on Aug. 10, 2005.
Joy said Van Dyke immediately began shouting at him and pointing his gun at him after he pulled over.
“He was shouting obscenities, racial slurs, and what have you,” Joy said. “I was called a black-a** n*****.”
He said Van Dyke pressed the gun against his temple after walking up to the car.
“I was quite nervous because he had his gun drawn on me,” he added. “He put the gun to my temple. … It was as if he was just infuriated; just out of his mind, in my opinion.”
Joy said he asked Van Dyke why he had been pulled over, but the officer never answered him.
He never answered Joy when he asked what he did wrong.
“He never gave me any reasons for detaining me,” Joy said.
Joy said he was given a traffic ticket, and was detained for 20 minutes or more.
He also said he is still affected by his run-in with Van Dyke today.
“I have anxiety to any time there is a police officer behind me, whether they’re pulling me over or not. I just shut down. I become momentarily catatonic,” he said.
Defense attorney Daniel Herbert noted that, after filing a complaint about the incident, Joy signed a report that he did not recall exactly what Van Dyke said to him, and did not specifically say the officer used “racial slurs.”
“That’s probably because it didn’t happen, right?” Herbert said.
“It did happen,” Joy said.
Herbert also said Joy did not state in his report that Van Dyke put his gun against his head, but Joy insisted he told an Office of Professional Standards investigator that Van Dyke pressed the weapon against his temple
“I recall telling her, I don’t know that she recorded it,” he said. “It seemed like she wasn’t interested in what I was saying in the first place.”
Defense attorneys said Van Dyke should be sentenced only on the second-degree murder count, arguing that someone cannot commit second-degree murder without also committing aggravated battery.
“The lesser harm merges into the greater harm,” defense attorney Darren O’Brien said.
O’Brien also said, to convict Van Dyke of second-degree murder, the jury had to find all the elements of first-degree murder had been proven, and merging the second-degree murder charge into the aggravated battery charges would essentially negate the jury’s decision that Van Dyke was not guilty of first-degree murder.
“If you do that, their deliberations are out the window,” O’Brien said.
The defense also argued the judge should not sentence Van Dyke for both the second-degree murder charge, and the aggravated battery charges.
“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,” O’Brien said.
Prosecutors said the judge should sentence Van Dyke to consecutive terms for each aggravated battery count that includes a gunshot wound that caused great bodily harm. At trial, a medical examiner who testified for the prosecution testified there were two fatal wounds.
Special Prosecutor Joseph McMahon said, with two fatal wounds, Van Dyke should get three consecutive prison sentences for aggravated battery – two for the fatal wounds, and one for the non-fatal wounds – for a minimum of 18 years.
Prosecutors also said the sentence needs to be proportional to the crime, noting sentencing Van Dyke to consecutive terms for all 16 aggravated battery counts would be a minimum of 96 years, more than double the 45-year minimum sentence for first-degree murder. McMahon said a sentence that long could raise constitutional issues.
The hearing started with arguments about whether Van Dyke should be sentenced for the second-degree murder conviction, or the aggravated battery charges, based on which charge is the more serious crime.
Special Prosecutor Joseph McMahon said, while second-degree murder might seem like a more serious crime to the average person, Illinois courts repeatedly have ruled aggravated battery with a firearm is a more significant charge.
“At first blush, to somebody who does not necessarily work in the system, when you hear the term second-degree murder, it sounds like a more serious offense; but under the laws of this state, under the sentencing code, under the decisions of both the appellate and the Supreme Court in our state, aggravated battery with a firearm is a more serious offense,” he said.
McMahon also noted that, when Van Dyke testified, he said he briefly paused as he was firing at McDonald to “reassess” the situation, and that jurors convicted him of 16 separate counts of aggravated battery.