Last Thursday, prosecutors announced that Chicago police officer Jason Van Dyke is facing new criminal charges in the fatal October 2014 shooting of 17-year-old Laquan McDonald. Van Dyke was indicted by a grand jury earlier this month on 16 counts of aggravated battery with a firearm—one count, apparently, for each bullet he fired at McDonald. Van Dyke had previously been indicted on charges of first-degree murder and misconduct in office. Special prosecutor Joseph McMahon filed the new indictment—which included the original charges—to replace the first one.I'm not sure that I approve of this strategy, but I DO approve of the enthusiasm.
"I've never seen charges shot by shot," says former Cook County prosecutor Robert Milan.
All of which begs a few questions: Why would prosecutors charge Van Dyke separately for each bullet he fired? How common are these kinds of charges in shooting cases? And how likely is it that a jury will buy the argument that Van Dyke committed 16 separate felonies?
To get some answers, I reached out to Robert Milan, previously the No. 2 prosecutor in the state's attorney's office for Cook County, which includes Chicago. Milan has personally tried more than 100 shooting cases, he says, and "I've never seen charges shot by shot."
Prosecutors, he says, may have filed the aggravated assault charges to preempt the defense's inevitable argument that Van Dyke had the authority to use deadly force to protect himself and others, or to prevent McDonald—who was wielding a knife and had reportedly attempted to break into cars—from committing a violent felony.
Jurors would consider the battery charges in addition to (not in place of) first-degree murder. So prosecutors could ask the judge to instruct the jury to consider Van Dyke's self-defense claim only for the bullets he fired before McDonald fell to the ground, on the grounds that the claim no longer applied after McDonald was down.
"If Van Dyke gets the total defense instruction for the entire act, I'm sure prosecutors are concerned that it covers all 16 shots," Milan said. But "if the judge buys it, and Van Dyke doesn't get that instruction, then that defense goes flying out the window for those shots. I really think that's what they're doing here."
Generally, when prosecutors have to prosecute a bad cop, they run as weak ass cases that seem to be designed to acquit cops.
That this prosecutor is serious about getting a conviction is a most welcome change.