124535 01 No. ________ IN THE SUPREME COURT OF ILLINOIS PEOPLE OF THE STATE OF ILLINOIS, ex rel. KWAME RAOUL, Illinois Attorney General, and JOSEPH H. McMAHON, Special Prosecutor and State’s Attorney of Kane County, Illinois, Petitioners, v. THE HONORABLE VINCENT M. GAUGHAN, Circuit Judge of the Circuit Court of Cook County, and JASON VAN DYKE, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) E-FILED 2/11/2019 11:22 AM Carolyn Taft Grosboll SUPREME COURT CLERK Original Petition for Writ of Mandamus/Prohibition Underlying Case No. 17 CR 4286 Circuit Court of Cook County The Honorable Vincent M. Gaughan, Judge Presiding. MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS OR PROHIBITION Petitioners seek leave to file a petition for mandamus or prohibition pursuant to Supreme Court Rule 381 and article VI, § 4(a) of the Illinois Constitution. 1. On October 5, 2018, a Cook County jury found respondent Jason Van Dyke guilty of sixteen counts of aggravated battery with a firearm and one count of second degree murder. SR165-70.1 1 “SR_” refers to the supporting record filed with this motion and proposed petition. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 2. On January 18, 2019, respondent Judge Vincent Gaughan sentenced Van Dyke to eighty-one months in prison on the second degree murder conviction alone. SR245-47, 253. 3. Van Dyke’s sentence is unauthorized. In sentencing Van Dyke, Judge Gaughan made two legal errors. First, contrary to clearly established law, Judge Gaughan sentenced Van Dyke only on the second degree murder conviction, concluding that second degree murder was the more serious offense “in this particular case.” SR245. But People v. Lee, 213 Ill. 2d 218, 229-30 (2004), holds that under the one-act, one-crime doctrine, a defendant convicted of both aggravated battery with a firearm and second degree murder must be sentenced only for aggravated battery with a firearm because it is, in every case, the more serious offense. 4. Second, Judge Gaughan stated that, although he was not entering sentences on the aggravated battery with a firearm convictions, were he to do so, “all those shots were done within a range of anyplace from 14 to so many seconds, but less than 30 seconds, at the most, so I consider that one act, so they would all merge.” SR245. But People v. Crespo, 203 Ill. 2d 335, 344-45 (2001), holds that a separate sentence on each conviction is required when the prosecution, through its charging and argument, has made clear its intention to treat the defendant’s conduct — there, the infliction of three stab wounds — as multiple acts. Here, the People made clear that Van Dyke’s sixteen shots were distinct acts supporting multiple SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 2 124535 convictions and sentences both by charging them as separate acts and in their closing argument. SR9-24, 50-51. 5. Thus, under Lee and Crespo, Judge Gaughan was required to impose sentence not on the second degree murder conviction, but instead on all sixteen aggravated battery convictions. 6. “Mandamus is an appropriate remedy to compel compliance with mandatory legal standards,” including compelling the undoing of an act. People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 192-93 (2009). Prohibition is appropriate to prevent a judicial act that is beyond the judge’s legitimate authority. People ex rel. Alvarez v. Howard, 2016 IL 120729, ¶ 13. Because Judge Gaughan’s sentencing order is unauthorized, a mandamus action appropriately asks this Court to order him to correct it to conform to Illinois law. People ex rel. Alvarez v. Gaughan, 2016 IL 120110, ¶ 21. Alternatively, because Judge Gaughan lacked authority to sentence Van Dyke for the less serious offense of second degree murder, prohibition is appropriate as well. See Howard, 2016 IL 120729, ¶ 13. 7. For these reasons and those set forth in the proposed petition for a writ of mandamus or prohibition, petitioners respectfully request that this Court issue an order directing Judge Gaughan to (1) vacate his sentencing order, (2) impose sentence on each of the sixteen aggravated battery with a firearm convictions, and (3) determine which of the aggravated battery with a firearm convictions involved “severe bodily injury” warranting consecutive sentences, see 730 ILCS 5/5-8-4(d)(1). 3 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 Respectfully submitted, KWAME RAOUL Attorney General of Illinois 100 West Randolph Street, 12th Floor Chicago, Illinois 60601-3218 (312) 814-2232 eserve.criminalappeals@atg.state.il.us JOSEPH H. McMAHON Special Prosecutor and State’s Attorney of Kane County 37W777 Route 38, Suite 300 St. Charles, Illinois 60175 (630) 232-3500 jm@co.kane.il.us DAVID L. FRANKLIN Solicitor General MICHAEL M. GLICK Criminal Appeals Division Chief By: /s/ Leah M. Bendik LEAH M. BENDIK Assistant Attorney General /s/ Brian McLeish BRIAN McLEISH Assistant Attorney General /s/Michelle Katz MICHELLE KATZ Assistant State’s Attorney 4 124535 VERIFICATION BY CERTIFICATION Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that she verily believes the same to be true. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM /s/ Leah M. Bendik Assistant Attorney General 124535 No. ________ IN THE SUPREME COURT OF ILLINOIS PEOPLE OF THE STATE OF ILLINOIS, ex rel. KWAME RAOUL, Illinois Attorney General, and JOSEPH H. McMAHON, Special Prosecutor and State’s Attorney of Kane County, Illinois, Petitioners, v. THE HONORABLE VINCENT M. GAUGHAN, Circuit Judge of the Circuit Court of Cook County, and JASON VAN DYKE, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Original Petition for Writ of Mandamus/Prohibition Underlying Case No. 17 CR 4286 Circuit Court of Cook County The Honorable Vincent M. Gaughan, Judge Presiding. ORDER This matter coming to be heard on the motion of petitioners for leave to file petition for mandamus or prohibition, the motion is hereby ALLOWED / DENIED. DATED: _____________________ LEAH M. BENDIK Assistant Attorney General 100 West Randolph St., 12th Floor Chicago, Illinois 60601-3218 (312) 814-5029 Eserve.criminalappeals@atg.state.il.us Counsel for Petitioners SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM ENTER: ___________________________ JUSTICE 124535 PROOF OF FILING AND SERVICE Under penalties as provided by law pursuant to 735 ILCS 5/1-109, the undersigned certifies that the statements set forth in this instrument are true and correct. On February 11, 2019, the foregoing Motion For Leave to File Petition for a Writ of Mandamus or Prohibition, which complies with the proposedorder requirement of Supreme Court Rule 361(b)(2), was electronically filed with the Clerk, Illinois Supreme Court, and served upon the following by email: Daniel Herbert Herbert Law Firm 206 South Jefferson, Suite 100 Chicago, Illinois 60661 dan.herbert@danherbertlaw.com The Honorable Vincent Gaughan Judge, Circuit Court of Cook County 2600 South California Avenue Chicago, Illinois 60608 Amber.Hunt@cookcountyil.gov Darren O’Brien P.O. Box 2372 Orland Park, Illinois 60462 dobrien57@comcast.net Jennifer Blagg 1333 West Devon Avenue Suite 267 Chicago, Illinois 60660 jennifer@blagglaw.net SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM /s/ Leah M. Bendik Counsel for Petitioners 124535 No. ________ IN THE SUPREME COURT OF ILLINOIS PEOPLE OF THE STATE OF ILLINOIS, ex rel. KWAME RAOUL, Illinois Attorney General, and JOSEPH H. McMAHON, Special Prosecutor and State’s Attorney of Kane County, Illinois, Petitioners, v. THE HONORABLE VINCENT M. GAUGHAN, Circuit Judge of the Circuit Court of Cook County, and JASON VAN DYKE, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Original Petition for Writ of Mandamus/Prohibition Underlying Case No. 17 CR 4286 Circuit Court of Cook County The Honorable Vincent M. Gaughan, Judge Presiding. PETITION FOR WRIT OF MANDAMUS OR PROHIBITION Petitioners seek a writ of mandamus or prohibition against respondent, the Honorable Vincent M. Gaughan, pursuant to Supreme Court Rule 381 and article VI, § 4(a) of the Illinois Constitution. Background 1. In March 2017, respondent Jason Van Dyke was charged by indictment with first degree murder and sixteen counts of aggravated battery with a firearm for killing Laquan McDonald on October 20, 2014. SR1-24.1 “SR_” refers to the supporting record filed with this motion and proposed petition. 1 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 2. On October 5, 2018, a Cook County jury found Van Dyke guilty of second degree murder and sixteen counts of aggravated battery with a firearm. SR165-70. 3. Van Dyke’s convictions of aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1)) are Class X (720 ILCS 5/12-3.05(h)), non-probationable felonies (730 ILCS 5/5-4.5-25(d)), requiring a sentence between six and thirty years (730 ILCS 5/5-4.5-25(a)). SR9-24. A defendant convicted of such an offense must serve at least 85% of the sentence imposed. 730 ILCS 5/3-63(a)(2)(ii) & (a)(4.7)(i). Van Dyke’s second degree murder conviction is a Class 1 (720 ILCS 5/9-2(d)), probationable felony (730 ILCS 5/5-4.5-30(d)), requiring a sentence between four and twenty years (730 ILCS 5/5-4.5-30(a)). SR253. A defendant convicted of such an offense may serve as little as 50% of the sentence imposed. 730 ILCS 5/3-6-3(a)(2.1). 4. The sixteen aggravated battery with a firearm counts charged each separate shot that Van Dyke fired. SR9-24. At trial, the People similarly argued that each shot supported a separate conviction for aggravated battery with a firearm. SR50-51. Dr. Ponni Arunkumar testified at trial that each shot struck the victim, caused blood loss, and contributed to the victim’s death, which resulted from “multiple gunshot wounds.” SR29-32. 5. And in the sentencing memorandum, the People argued that Judge Gaughan was required to sentence Van Dyke on each of the sixteen aggravated battery with a firearm convictions, citing People v. Lee, 213 Ill. 2d SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 2 124535 218, 229-30 (2004), and People v. Crespo, 203 Ill. 2d 335, 344-45 (2001). SR175-80. 6. Judge Gaughan acknowledged that he was required to sentence Van Dyke on the “more serious” offense. SR242-43. But in deciding which offense was more serious, he relied on the dissenting opinion in Lee. SR245 (“[A]pplying Justice Thomas’s reasoning, I find that the lesser offense in this particular case . . . is the aggravated battery with a firearm.”); SR242 (“Justice Thomas in that case out of the Supreme Court framed the issue which I think is important here.”); SR243 (“But looking at that, and then Justice Thomas’s analysis of the penalties . . .”). Judge Gaughan also stated that were he to sentence Van Dyke on the aggravated battery with a firearm convictions, he would merge all sixteen convictions under the one-act, onecrime doctrine because the shots were fired close in time. SR245. 7. Ultimately, Judge Gaughan sentenced Van Dyke solely on the second degree murder conviction. SR245-47, 253. According to the Cook County Circuit Clerk’s Office, Van Dyke filed a notice of appeal on February 8, 2019.2 Van Dyke’s direct appeal has no effect on this mandamus action. See, e.g., People ex rel. Daley v. Strayhorn, 119 Ill. 2d 331, 333-37 (1988) (notwithstanding pending direct appeal, mandamus was proper to require sentencing judge to follow mandatory statutory sentencing guidelines). The direct appeal will not address the sentencing errors raised in this mandamus, SR188-99, and the State may not raise the errors through a cross-appeal, People v. Castleberry, 2015 IL 116916, ¶¶ 21-23. 2 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 3 124535 Argument This Court has original jurisdiction in mandamus and prohibition actions. Ill. Const. 1970, art. VI, § 4(a). “Mandamus is an extraordinary remedy used to compel a public official to perform a purely ministerial duty where no exercise of discretion is involved.” People ex rel. Alvarez v. Howard, 2016 IL 120729, ¶¶ 12-13 (citing People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 192-93 (2009)). “Although mandamus generally provides affirmative rather than prohibitory relief, the writ can be used to compel the undoing of an act,” Howard, 2016 IL 120729, ¶ 12 (citation omitted), and “to compel compliance with mandatory legal standards,” Konetski, 233 Ill. 2d at 192-93. A writ of mandamus will be awarded if the petitioner establishes a clear right to the relief sought, a clear duty of the public official to act, and clear authority in the public official to comply with the writ. Howard, 2016 IL 120729, ¶ 12. A writ of prohibition may be issued to “prevent a judge from acting where he has no jurisdiction to act or to prevent a judicial act that is beyond the scope of a judge’s legitimate jurisdictional authority.” Id. ¶ 13 (citations, quotation marks, and brackets omitted). For a writ of prohibition to issue, the action to be prohibited must be judicial or quasi-judicial in nature, the jurisdiction of the tribunal against which the writ issues must be inferior to that of the issuing court, the action to be prohibited must be outside the tribunal’s jurisdiction or, if within its jurisdiction, beyond its legitimate authority, and the petitioner must be without any other adequate remedy. 4 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 People ex rel. Devine v. Stralka, 226 Ill. 2d 445, 449-50 (2007); Zaabel v. Konetski, 209 Ill. 2d 127, 132 (2004). I. This Court Should Order Judge Gaughan to Sentence Van Dyke in Accordance with People v. Lee. Here, mandamus or prohibition is warranted because (1) under Lee, Judge Gaughan was required to impose sentence on the aggravated battery with a firearm convictions instead of the second degree murder conviction; and (2) no other adequate remedy is available because petitioners may not appeal Judge Gaughan’s sentencing order. See Castleberry, 2015 IL 116961, ¶ 27 (“The remedy of mandamus … permits the State to challenge criminal sentencing orders where it is alleged that the circuit court violated a mandatory sentencing requirement, but precludes the State from challenging ordinary, discretionary sentencing decisions.”). Where, as here, a defendant is found guilty of aggravated battery with a firearm and second degree murder based on the same conduct, the trial court must sentence the defendant only on the “more serious” offense. Lee, 213 Ill. 2d at 226-27. The question of which offense is “more serious” is one for the General Assembly. Id. at 230. Because the General Assembly assigned a higher maximum sentence, higher minimum sentence, and greater felony classification to aggravated battery with a firearm, it is always a more serious offense than second degree murder. Id. at 228-30 (vacating sentence on second degree murder because aggravated battery with a firearm is the more serious offense). 5 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 Despite this Court’s clear holding in Lee, Judge Gaughan sentenced Van Dyke on second degree murder and declined to impose sentence on the sixteen aggravated battery counts. Relying on the dissent of a lone justice in Lee, Judge Gaughan stated that he would decide which was the more serious offense based on the facts of the particular case. SR242 (“Justice Thomas in that case out of the Supreme Court framed the issue which I think is important here”); SR243 (“But looking at that, and then Justice Thomas’s analysis of the penalties . . .”); SR245 (“Again, applying Justice Thomas’s reasoning, I find that the lesser offense in this particular case . . . is the aggravated battery with a firearm.”). Lee remains good law. See People v. Johnson, 237 Ill. 2d 81, 98 (2010) (applying Lee and reiterating that “[t]he determinative question in each case is the intent of the legislature”). And in the fifteen years following Lee, the General Assembly has amended neither the felony classifications nor the sentencing ranges for either of these two offenses, further demonstrating that Lee’s outcome is consistent with legislative intent. See, e.g., People v. Espinoza, 2015 IL 118218, ¶ 27 (“When the legislature chooses not to amend a statute following a judicial construction, it will be presumed that the legislature has acquiesced in the court’s statement of the legislative intent.”). Because Lee required Judge Gaughan to sentence Van Dyke on the aggravated battery with a firearm convictions, the sentence for second degree 6 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 murder was unauthorized. See, e.g., Blumenthal v. Brewer, 2016 IL 118781, ¶¶ 28-30 (lower courts are not free to disregard decisions of this Court). II. This Court Should Order Judge Gaughan to Sentence Van Dyke in Accordance with People v. Crespo. Where, as here, the People charge and prosecute a defendant’s conduct as multiple acts and obtain multiple convictions, the sentencing court must impose a separate sentence on each conviction. People v. Crespo, 203 Ill. 2d 335, 344-45 (2001) (multiple convictions and sentences would have been appropriate had State argued that each stab wound was alone sufficient to sustain charge); see also People v. Dixon, 91 Ill. 2d 346, 356 (1982) (“separate blows, even though closely related, were not one physical act” and therefore supported multiple convictions and sentences). While issuing an unauthorized sentence in violation of Lee, Judge Gaughan also stated that were he to sentence Van Dyke for the aggravated battery with a firearm, he would impose a single sentence on all sixteen convictions, reasoning that because the sixteen shots were fired in less than thirty seconds, they constituted a single act. SR245 (“all those shots were done within a range of anyplace from 14 to so many seconds, but less than 30 seconds, at the most, so I consider that one act, so they would all merge.”). Because the People separately charged each shot and the jury convicted on each count, separate convictions and sentences are required. Even where multiple acts by a defendant are committed close in time, they can sustain multiple convictions under Crespo if the People charge and argue each act as a 7 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 separate offense. 203 Ill. at 342 (“[S]eparate blows, although closely related, [may] constitute[ ] separate acts which [can] properly support multiple convictions.”). The People here did just that. SR9-24, 51; see also SR 165-70. Accordingly, Van Dyke should be sentenced on each of the sixteen separate aggravated battery with a firearm convictions in accordance with Crespo. Only offenses that caused “severe bodily injury” warrant consecutive sentences, 730 ILCS 5/5-8-4(d)(1), and not every gunshot wound constitutes severe bodily injury, see, e.g., People v. Williams, 335 Ill. App. 3d 596, 601 (1st Dist. 2002) (remanding for factfinding on severe bodily injury where victims suffered “through wounds” in their legs). Whether an injury is “severe” is a question of fact for the sentencing judge. See People v. Deleon, 227 Ill. 2d 322, 332 (2008). Thus, in imposing sentence for the sixteen aggravated battery with a firearm convictions, Judge Gaughan should determine which ones involved “severe bodily injury” warranting consecutive sentences.3 Conclusion Petitioners respectfully request that this Court issue a writ of mandamus or prohibition directing Judge Gaughan to (1) vacate Van Dyke’s eighty-one-month sentence for second degree murder, (2) impose sentence on The People’s sentencing memorandum argued that at least two of Van Dyke’s shots caused severe bodily injury warranting mandatory consecutive sentences on those counts. SR182. Under those circumstances, Van Dyke would face a minimum sentence of eighteen years: six years each for the two consecutive severe-bodily-injury counts, plus an additional six years for the remaining fourteen counts. Id. 3 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 8 124535 each of the sixteen counts of aggravated battery with a firearm, in conformance with Lee, Crespo, and the applicable sentencing provisions, and (3) determine which of the aggravated battery with a firearm convictions involved “severe bodily injury” warranting consecutive sentences, see 730 ILCS 5/5-8-4(d)(1). SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM Respectfully submitted, KWAME RAOUL Attorney General of Illinois 100 West Randolph Street, 12th Floor Chicago, Illinois 60601-3218 (312) 814-2232 eserve.criminalappeals@atg.state.il.us JOSEPH H. MCMAHON State’s Attorney of Kane County 37W777 Route 38, Suite 300 St. Charles, Illinois 60175 (630) 232-3500 jm@co.kane.il.us DAVID L. FRANKLIN Solicitor General MICHAEL M. GLICK Criminal Appeals Division Chief By: /s/ Leah M. Bendik LEAH M. BENDIK Assistant Attorney General /s/ Brian McLeish BRIAN McLEISH Assistant Attorney General /s/Michelle Katz MICHELLE KATZ Assistant State’s Attorney 9 124535 VERIFICATION BY CERTIFICATION Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that she verily believes the same to be true. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM /s/ Leah M. Bendik LEAH M. BENDIK Assistant Attorney General 124535 PROOF OF FILING AND SERVICE Under penalties as provided by law pursuant to 735 ILCS 5/1-109, the undersigned certifies that the statements set forth in this instrument are true and correct. On February 11, 2019, the foregoing Petition for Writ of Mandamus or Prohibition and Supporting Record, were electronically filed with the Clerk, Illinois Supreme Court, and served upon the following by email: Daniel Herbert Herbert Law Firm 206 South Jefferson, Suite 100 Chicago, Illinois 60661 dan.herbert@danherbertlaw.com The Honorable Vincent Gaughan Judge, Circuit Court of Cook County 2600 South California Avenue Chicago, Illinois 60608 Amber.Hunt@cookcountyil.gov Darren O’Brien P.O. Box 2372 Orland Park, Illinois 60462 dobrien57@comcast.net Jennifer Blagg 1333 West Devon Avenue Suite 267 Chicago, Illinois 60660 jennifer@blagglaw.net SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM /s/ Leah M. Bendik Counsel for Petitioners 124535 No. ________ IN THE SUPREME COURT OF ILLINOIS PEOPLE OF THE STATE OF ILLINOIS, ex rel. KWAME RAOUL, Illinois Attorney General, and JOSEPH H. McMAHON, Special Prosecutor and State’s Attorney of Kane County, Illinois, Petitioners, v. THE HONORABLE VINCENT M. GAUGHAN, Circuit Judge of the Circuit Court of Cook County, and JASON VAN DYKE, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Original Petition for Writ of Mandamus/Prohibition Underlying Case No. 17 CR 4286 Circuit Court of Cook County The Honorable Vincent M. Gaughan, Judge Presiding. SUPPORTING RECORD LEAH M. BENDIK Assistant Attorney General 100 West Randolph St., 12th Floor Chicago, Illinois 60601 (312) 814-5029 Eserve.criminalappeals@atg.state.il.us Counsel for Petitioners SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 VERIFICATION BY CERTIFICATION Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies on information and belief that the documents in the Supporting Record are true and correct copies of those filed in People v. Van Dyke, No. 17 CR 04286 (Cir. Ct. Cook Cty.). SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM /s/ Leah M. Bendik LEAH M. BENDIK 124535 INDEX Indictment ....................................................................................................... SR1 Excerpt from report of proceedings, testimony of Dr. Ponni Arunkumar (Sept. 19, 2018) .................................. SR27 Report of proceedings, closing argument (Oct. 4, 2018) .............................. SR34 Report of proceedings, jury verdict (Oct. 5, 2018) ..................................... SR145 People’s sentencing memorandum ............................................................. SR174 Respondent Van Dyke’s sentencing memorandum ................................... SR187 Excerpt from report of proceedings, sentencing (Jan. 18, 2019)............... SR215 Disposition sheets ....................................................................................... SR250 Order of commitment and sentence ........................................................... SR253 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM CASE NO. GJ- 252 1 24535 INFORMATION INDICTMENT RETURN IR DEFENDANT N0. ARRAIGNMENT DATE 2306293 Jason Van Dyke 001 03/23/2017 FBI-XJ5E48PA3 ISB-45954410 Add:206 S. Jefferson St, Suite 100, Chicago, IL 60661 Municipal-15-1127823 Arrest COUNTY ATTORNEY Arrest Unit: Arrest Datezll/24/2015 DL State: Hgt:602 Wgt:210 Hair:Brown Eyes:Blue True Bill 03/16/2017 ASA: Dan Weiler 001 TO WITH FIREARM 720 ILCS 0735000 Class: 002 PROB FIREARM 720 ILCS 0735100 Class: 003 TO DISCHARGE FIREARM 720 ILCS 0735000 Class: 004 PROB DISCHARGE FIREARM 720 ILCS 0735100 Class: 005 TO DISCHARGE FIREARM PROXIMATELY 720 ILCS 0735000 Class: 006 PROB DISCHARGE FIREARM PROXIMATELY 720 ILCS 0735100 Class: 007 AGG FIREARM 720 ILCS 0016114 Class: 008 AGG FIREARM 720 ILCS 0016114 Class: 009 AGG FIREARM 720 ILCS 0016114 Class: 0010 AGG FIREARM 720 ILCS 0016114 Class: SR1 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 1 24535 0011 AGG FIREARM 720 ILCS 0016114 Class: 0012 AGG FIREARM 720 ILCS 0016114 Class: 0013 AGG FIREARM 720 ILCS 0016114 Class: 0014 AGG FIREARM 720.ILCS 0016114 Class: 0015 AGG FIREARM 720 ILCS 0016114 Class: 0016 AGG FIREARM 720 ILCS 0016114 Class: 0017 AGG FIREARM 720 ILCS 0016114 Class: 0018 AGG FIREARM 720 ILCS 0016114 Class: 0019 AGG FIREARM 720 ILCS 0016114 Class: 0020 AGG FIREARM 720 ILCS 0016114 Class: 0021 AGG FIREARM 720 ILCS 0016114 Class: 0022 AGG FIREARM 720 ILCS 0016114 Class: 0023 OFFL ACT 720 ILCS 1430100 Class: 3 Re?Indicted From Case 15CR-20622 BF SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM SR2 124535 i STATE OF ILLINOIS 1 COUNTY OF COOK The MARCH 2017 Grand Jury of the Circuit Court of Cook County, The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of FIRST DEGREE MURDER in that HE, WITHOUT LAWFUL JUSTIFICATION, INTENTIONALLY OR KNOWINGLY SHOT AND KILLED LAQUAN MCDONALD WHILE ARMED WITH A FIREARM IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 1 CASE NUMBER 17CR-4286 CHARGE ID CODE: 0735000 ESR3 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 1 24535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook in the State of Illinois, in the name and by the authority of the People of the State of Illinois upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of FIRST DEGREE MURDER in that HE, WITHOUT LAWFUL JUSTIFICATION, SHOT AND KILLED LAQUAN MCDONALD WHILE ARMED WITH A FIREARM, KNOWING THAT SUCH ACT CREATED A STRONG PROBABILITY OF DEATH OR GREAT BODILY HARM TO LAQUAN MCDONALD, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION 9- OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 2 CASE NUMBER CHARGE ID CODE: 0735100 SR4 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 1 24535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of FIRST DEGREE MURDER in that HE, WITHOUT LAWFUL JUSTIFICATION, INTENTIONALLY OR KNOWINGLY SHOT AND KILLED LAQUAN MCDONALD WHILE ARMED WITH A FIREARM AND DURING THE COMMISSION OF THE OFFENSE HE PERSONALLY DISCHARGED A FIREARM, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 3 CASE NUMBER CHARGE ID CODE: 0735000 SR5 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 1 24535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook - am; 4-.- Jason Van Dyke committed the offense of FIRST DEGREE MURDER in that HE, WITHOUT LAWFUL JUSTIFICATION, SHOT AND KILLED LAQUAN MCDONALD WHILE ARMED WITH A FIREARM, KNOWING THAT SUCH ACT CREATED A STRONG PROBABILITY OF DEATH OR GREAT BODILY HARM TO LAQUAN MCDONALD AND DURING THE COMMISSION OF THE OFFENSE HE PERSONALLY DISCHARGED A FIREARM, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 4 CASE NUMBER CHARGE ID CODE: 0735100 SR6 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 1 24535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of FIRST DEGREE MURDER in that HE, WITHOUT LAWFUL JUSTIFICATION, INTENTIONALLY OR KNOWINGLY SHOT AND KILLED LAQUAN MCDONALD WHILE ARMED WITH A FIREARM AND DURING THE COMMISSION OF THE-OFFENSE HE PERSONALLY DISCHARGED A FIREARM THAT PROXIMATELY CAUSED DEATH, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 5 CASE NUMBER 17CR-4286 CHARGE ID CODE: 0735000 SR7 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 1 24535 a- The Grand Jurors chosen, selected and sworn, in and for the County of 5 Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of FIRST DEGREE MURDER in that HE, WITHOUT LAWFUL JUSTIFICATION, SHOT AND KILLED LAQUAN MCDONALD WHILE ARMED WITH A FIREARM, KNOWING THAT SUCH ACT CREATED A STRONG PROBABILITY OF DEATH OR GREAT BODILY HARM TO LAQUAN MCDONALD AND DURING THE COMMISSION OF THE OFFENSE HE PERSONALLY DISCHARGED A FIREARM THAT PROXIMATELY CAUSED DEATH, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 6 CASE NUMBER CHARGE ID CODE: 0735100 SR8 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of AGGRAVATED BATTERY in that HE, IN COMMITTING A BATTERY, IN VIOLATION OF ILLINOIS COMPILED STATUTES CHAPTER 720, ACT 5, SECTION 12-3, WITHOUT LEGAL JUSTIFICATION, KNOWINGLY AND BY MEANS OF DISCHARGING A FIREARM CAUSED AN INJURY TO LAQUAN MCDONALD, IN THAT SAID DEFENDANT SHOT LAQUAN MCDONALD WITH A HANDGUN, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND Contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 7 CASE NUMBER CHARGE ID CODE: 0016114 SR9 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of AGGRAVATED BATTERY in that HE, IN COMMITTING A BATTERY, IN VIOLATION OF ILLINOIS COMPILED STATUTES CHAPTER 720, ACT 5, SECTION 12-3, WITHOUT LEGAL JUSTIFICATION, KNOWINGLY AND BY MEANS OF DISCHARGING A FIREARM CAUSED AN INJURY TO LAQUAN MCDONALD, IN THAT SAID DEFENDANT SHOT LAQUAN MCDONALD A SECOND TIME WITH A HANDGUN, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 8 CASE NUMBER CHARGE ID CODE: 0016114 SRIO SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 1 24535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason van Dyke committed the offense of AGGRAVATED BATTERY in that HE, IN COMMITTING A BATTERY, IN VIOLATION OF ILLINOIS COMPILED STATUTES CHAPTER 720, ACT 5, SECTION 12-3, WITHOUT LEGAL JUSTIFICATION, KNOWINGLY AND BY MEANS OF DISCHARGING A FIREARM CAUSED AN INJURY TO LAQUAN MCDONALD, IN THAT SAID DEFENDANT SHOT LAQUAN MCDONALD A THIRD TIME WITH A HANDGUN, - IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 9 CASE NUMBER CHARGE ID CODE: 0016114 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of AGGRAVATED BATTERY in that HE, IN COMMITTING A BATTERY, IN VIOLATION OF ILLINOIS COMPILED STATUTES CHAPTER 720, ACT 5, SECTION 12?3, WITHOUT LEGAL JUSTIFICATION, KNOWINGLY AND BY MEANS OF DISCHARGING A FIREARM CAUSED AN INJURY TO LAQUAN MCDONALD, IN THAT SAID DEFENDANT SHOT LAQUAN MCDONALD A FOURTH TIME WITH A HANDGUN, - IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 10 CASE NUMBER 17CR-4286 CHARGE ID CODE: 0016114 SR12 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of BATTERY in that HE, IN COMMITTING A BATTERY, IN VIOLATION OF ILLINOIS COMPILED STATUTES CHAPTER 720, ACT 5, SECTION 12-3, WITHOUT LEGAL JUSTIFICATION, KNOWINGLY AND BY MEANS OF DISCHARGING A FIREARM CAUSED AN INJURY TO LAQUAN MCDONALD, IN THAT SAID.DEFENDANT SHOT LAQUAN MCDONALD A FIFTH TIME WITH A HANDGUN, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 11 CASE NUMBER 17CR-4286 CHARGE ID CODE: 0016114 SR13 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook '4 Jason Van Dyke committed the offense of AGGRAVATED BATTERY in that HE, IN COMMITTING A BATTERY, IN VIOLATION OF ILLINOIS COMPILED STATUTES CHAPTER 720, ACT 5, SECTION 12-3, WITHOUT LEGAL JUSTIFICATION, KNOWINGLY AND BY MEANS OF DISCHARGING A FIREARM CAUSED AN INJURY TO LAQUAN MCDONALD, IN THAT SAID DEFENDANT SHOT LAQUAN MCDONALD A SIXTH TIME WITH A HANDGUN, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 12 CASE NUMBER CHARGE ID CODE: 0016114 SR14 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 The Grand Jurors chosen, selected and sworn, in and f0r the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of AGGRAVATED BATTERY in that HE, IN COMMITTING A BATTERY, IN VIOLATION OF ILLINOIS COMPILED STATUTES CHAPTER 720, ACT 5, SECTION 12-3, WITHOUT LEGAL JUSTIFICATION, KNOWINGLY AND BY MEANS OF DISCHARGING A FIREARM CAUSED AN INJURY TO LAQUAN MCDONALD, IN THAT SAID DEFENDANT SHOT LAQUAN MCDONALD A SEVENTH TIME WITH A HANDGUN, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 13 CASE NUMBER CHARGE ID CODE: 00161l4' SR15 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of AGGRAVATED BATTERY in that HE, IN COMMITTING A BATTERY, IN VIOLATION OF ILLINOIS COMPILED STATUTES CHAPTER 720, ACT 5, SECTION 12-3, WITHOUT LEGAL JUSTIFICATION, KNOWINGLY AND BY MEANS OF DISCHARGING A FIREARM CAUSED AN INJURY TO LAQUAN MCDONALD, IN THAT SAID DEFENDANT SHOT LAQUAN MCDONALD AN EIGHTH TIME WITH A HANDGUN, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 14 CASE NUMBER CHARGE ID CODE: 0016114 SR16 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or 1 about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of AGGRAVATED BATTERY in that HE, IN COMMITTING A BATTERY, IN VIOLATION OF ILLINOIS COMPILED STATUTES CHAPTER 720, ACT 5, SECTION 12-3, WITHOUT LEGAL JUSTIFICATION, KNOWINGLY AND BY MEANS OF DISCHARGING A FIREARM CAUSED AN INJURY TO LAQUAN MCDONALD, IN THAT SAID.DEFENDANT SHOT LAQUAN MCDONALD A NINTH TIME WITH A HANDGUN, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 15 CASE NUMBER CHARGE ID CODE: 0016114 SR17 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of AGGRAVATED BATTERY in that HE, IN COMMITTING A BATTERY, IN VIOLATION OF ILLINOIS COMPILED STATUTES CHAPTER 720, ACT 5, SECTION 12-3, WITHOUT LEGAL JUSTIFICATION, KNOWINGLY AND BY MEANS OF DISCHARGING A FIREARM CAUSED AN INJURY TO LAQUAN MCDONALD, IN THAT SAID DEFENDANT SHOT LAQUAN MCDONALD A TENTH TIME WITH A HANDGUN, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 16 CASE NUMBER CHARGE ID CODE: 0016114 SR18 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of AGGRAVATED BATTERY in that HE, IN COMMITTING A BATTERY, IN VIOLATION OF ILLINOIS COMPILED STATUTES CHAPTER 720} ACT 5, SECTION 12-3, WITHOUT LEGAL JUSTIFICATION, KNOWINGLY AND BY MEANS OF DISCHARGING A FIREARM CAUSED AN INJURY TO LAQUAN MCDONALD, IN THAT SAID DEFENDANT SHOT LAQUAN MCDONALD AN ELEVENTH TIME WITH A HANDGUN, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 17 CASE NUMBER 17CR-4286 CHARGE ID CODE: 0016114 SR19 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of AGGRAVATED BATTERY in that HE, IN COMMITTING A BATTERY, IN VIOLATION OF ILLINOIS COMPILED STATUTES CHAPTER 720, ACT 5, SECTION 12-3, WITHOUT LEGAL JUSTIFICATION, KNOWINGLY AND BY MEANS OF DISCHARGING A FIREARM CAUSED AN INJURY TO LAQUAN MCDONALD, IN THAT SAID DEFENDANT SHOT LAQUAN MCDONALD A TWELFTH TIME WITH A HANDGUN, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 18 CASE NUMBER 17CR-4286 CHARGE ID CODE: 0016114 SR2O SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the Offense of AGGRAVATED BATTERY in that HE, IN COMMITTING A BATTERY, IN VIOLATION OF ILLINOIS COMPILED STATUTES CHAPTER 720, ACT 5, SECTION 12-3, WITHOUT LEGAL JUSTIFICATION, KNOWINGLY AND BY MEANS OF DISCHARGING A FIREARM CAUSED AN INJURY TO LAQUAN MCDONALD, IN THAT SAID DEFENDANT SHOT LAQUAN MCDONALD A THIRTEENTH TIME WITH A HANDGUN, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 19 CASE NUMBER 17CR-4286 CHARGE ID CODE: 0016114 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of AGGRAVATED BATTERY in that HE, IN COMMITTING A BATTERY, IN VIOLATION OF ILLINOIS COMPILED STATUTES CHAPTER 720, ACT 5, SECTION 12-3, WITHOUT LEGAL JUSTIFICATION, KNOWINGLY AND BY MEANS OF DISCHARGING A FIREARM CAUSED AN INJURY TO LAQUAN MCDONALD, IN THAT SAID DEFENDANT SHOT LAQUAN MCDONALD A FOURTEENTH TIME WITH A HANDGUN, - IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 20 CASE NUMBER CHARGE ID CODE: 00l6114 SR22 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of AGGRAVATED BATTERY in that HE, IN COMMITTING A BATTERY, IN VIOLATION OF ILLINOIS COMPILED STATUTES CHAPTER 720, ACT 5, SECTION 12?3, WITHOUT LEGAL JUSTIFICATION, KNOWINGLY AND BY MEANS OF DISCHARGING A FIREARM CAUSED AN INJURY TO LAQUAN MCDONALD, IN THAT SAID DEFENDANT SHOT LAQUAN MCDONALD A FIFTEENTH TIME WITH A HANDGUN, . IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 21 CASE NUMBER 17CR-4286 CHARGE ID CODE: 0016114 SR23 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of AGGRAVATED BATTERY in that HE, IN COMMITTING A BATTERY, IN VIOLATION OF ILLINOIS COMPILED STATUTES CHAPTER 720, ACT 5, SECTION 12-3, WITHOUT LEGAL JUSTIFICATION, KNOWINGLY AND BY MEANS OF DISCHARGING A FIREARM CAUSED AN INJURY TO LAQUAN MCDONALD, IN THAT SAID DEFENDANT SHOT LAQUAN MCDONALD A SIXTEENTH TIME WITH A HANDGUN, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same PeoPle of the State of Illinois. COUNT NUMBER 22 CASE NUMBER 17CR-4286 CHARGE ID CODE: 0016114 SR24 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 The Grand Jurors chosen, selected and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on or about October 20, 2014 at and within the County of Cook Jason Van Dyke committed the offense of OFFICIAL MISCONDUCT in that HE, BEING A PUBLIC OFFICER OR EMPLOYEE OR SPECIAL GOVERNMENT AGENT WHILE IN HIS OFFICIAL CAPACITY KNOWINGLY COMMITTED AN ACT WHICH HE KNEW THAT HE WAS FORBIDDEN BY LAW TO PERFORM, TO WIT: HE SHOT AND KILLED LAQUAN MCDONALD WITHOUT LAWFUL JUSTIFICATION, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. COUNT NUMBER 23 CASE NUMBER.17CR-4286 CHARGE ID CODE: 1430100 SR25 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM .. 1 Ff 1 24535 Ram ?(.11ch ?an 1?6 Oil 206 21 FELONY MINUTE SHEET FORM 101 MM as; ASSISTANT ATTORNEY: Enter each continuance here. In cases of multiple defendants indicate which defendant, if any did not join in the continuance. Also Indicate dates of all demands for trial, and whom demands were made. COURT IR NUMBER AGE DATE OF ARREST 2306293 Van Dyke, Jason 11/24/15 "3-231?; CHARGE First degree murder Of?cial misconduct Aggravated battery Date of Offense: _1 0/20/14 .Time:_lO:00PM Place: 4120 SJPulaski Ave The Facts brie?y stated are as follows: above date, time, and location Jason Van Dylce shot and killed LaQuan McDonald WITNESS: Spell out first and last names, ?rst name list also furnish address phone number of each witness PROSECUTING WITNESS: SA Jeffrey Guagliardo FBI BOND ASST. ATTY Wt] kr R.D. JO: Cu ?ix SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 7 SR26 124535 DAILY COPY - NOT FOR APPEAL PURPOSES 1 2 3 4 5 6 STATE OF ILLINOIS ) ) COUNTY OF C O O K ) IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT - CRIMINAL DIVISION THE PEOPLE OF THE STATE OF ILLINOIS, 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ) ) A.M. SESSION ONLY ) ) ) ) No. 17 CR 04286 (01) ) ) ) ) Plaintiff, 7 8 SS: vs. JASON VAN DYKE, Defendant. REPORT OF PROCEEDINGS had before the HONORABLE VINCENT M. GAUGHAN, Judge of said Court, on the 19th day of September, A.D., 2018. APPEARANCES: HON. JOSEPH McMAHON, State's Attorney of Kane County, Court-Appointed Special Prosecutor, and MR. JOSEPH CULLEN, MS. JODY GLEASON, MS. MARILYN HITE ROSS, MR. DANIEL WEILER, MS. MICHELLE KATZ, Assistant Special Prosecutors, On behalf of the People; MR. DANIEL HERBERT, MR. RANDY RUECKERT, MS. TAMMY WENDT, MS. ELIZABETH FLEMING, Attorneys at Law, On behalf of the Defendant. KRISTEN M. PARRILLI, CSR, RPR Official Court Reporter Criminal Division CSR: #084-004723 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 1 SR27 124535 DAILY COPY - NOT FOR APPEAL PURPOSES I N D E X 1 2 Case Name: 3 Case No: 4 Pages: 5 Court Reporter: 6 Reporter Certificate: 7 WITNESSES 8 ALAN GAYAN Direct Examination by Mr. Cullen........... Cross-Examination by Mr. Rueckert.......... Direct Examination by Mr. Cullen........... 22 26 28 MARK SMITH Direct Examination by Mr. Cullen........... Cross-Examination by Mr. Rueckert.......... Redirect Examination by Mr. Cullen......... 31 39 47 GREGORY BRATE Direct Examination by Ms. Gleason.......... 49 DR. PONNI ARUNKUMAR Direct Examination by Mr. McMahon.......... 68 9 10 11 12 13 14 15 People vs. Jason Van Dyke 17 CR 04286 (01) 1 through 185 Kristen M. Parrilli, CSR, RPR Page 185 PAGE 16 17 **Sidebar at page 46** 18 19 20 21 22 23 24 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 2 SR28 124535 DAILY COPY - NOT FOR APPEAL PURPOSES 1 Q. -- for outside testing? 2 A. Yes. 3 Q. What are the effects of PCP at 56 nanograms 4 per milliliter in a person's system? 5 MR. HERBERT: 6 THE COURT: 7 THE WITNESS: Objection, Judge. She's a medical doctor. Overruled. The physiological effects from PCP 8 at a level of 56 nanograms per ML would be referred 9 to -- would be classified as effects from a low dose of 10 phencyclidine, and these effects include visual 11 disturbances, drowsiness, agitation, hallucinations, 12 aggressiveness, increased pulse rate and blood 13 pressure, bronchospasm, increased respiratory rate, and 14 hypothermia. 15 report. 16 17 Q. And this is documented in the toxicology Doctor, was Laquan McDonald alive for each and every gunshot? 18 MR. HERBERT: 19 THE COURT: 20 21 22 23 24 Objection, Judge. I'll allow you wide latitude on cross-examination. THE WITNESS: Overruled. Yes. BY MR. McMAHON: Q. Did each and every gunshot wound cause Laquan McDonald to lose blood? SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 180 SR29 124535 DAILY COPY - NOT FOR APPEAL PURPOSES 1 A. Yes. 2 Q. Doctor, how much blood by volume does the 3 4 5 human body hold? A. The human body has around five liters of blood. 6 Q. 7 loses blood? 8 A. 9 And what happens to a person when -- when he When they lose about -- when one loses about 20 to 25 percent of the blood volume, which is a little 10 more than a liter of blood, one can go into shock, 11 which is hemorrhagic shock. 12 Q. And as the person loses more blood, so more 13 than 20 to 25 percent, is there an impact of losing a 14 greater amount of blood? 15 A. Yes. 16 Q. What is that? 17 A. At a certain stage, one cannot be 18 19 20 21 22 resuscitated or revived and death is a consequence. Q. And what is that higher level? What is that stage? MR. HERBERT: Judge, I'm going to object. This is all outside the scope of -- 23 THE COURT: 24 MR. HERBERT: It's noted. Thank you. Thank you. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 181 SR30 124535 DAILY COPY - NOT FOR APPEAL PURPOSES 1 THE COURT: 2 THE WITNESS: Objection overruled. When a person loses about 60 percent 3 of their blood volume, usually death is the result. 4 BY MR. McMAHON: 5 6 Q. You testified earlier that each of the 16 gunshot wounds caused blood loss, correct? 7 A. Correct. 8 Q. And did each and every gunshot wound and the 9 10 blood loss from gunshot wound, did that accelerate the death of Laquan McDonald? 11 A. Yes. 12 Q. Did each and every gunshot wound contribute 13 to the death of Laquan McDonald? 14 A. Yes. 15 Q. Doctor, based on your years of experience, 16 your training, your education, the thousands of 17 autopsies that you have both personally performed and 18 the thousands more that you have reviewed and 19 supervised, all of the medical information, the autopsy 20 reports, the photographs, the toxicology reports, the 21 videos, you determined the cause of death to Laquan 22 McDonald? 23 A. Yes. 24 Q. What is it? SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 182 SR31 124535 DAILY COPY - NOT FOR APPEAL PURPOSES 1 A. 2 wounds. 3 4 Q. The cause of death is multiple gunshot Doctor, what was the manner of death to Laquan McDonald? 5 A. 6 MR. McMAHON: 7 THE COURT: 8 MR. McMAHON: 9 10 11 The manner of death is homicide. If I can have a moment, Judge? Absolutely. Thank you, Judge. have. THE COURT: Doctor, you can step down. Doctor, you're still under oath. 12 talk to anybody about your testimony. 13 be cross-examined later. 14 lunch at this time. 15 That's all I THE SHERIFF: You can't You're going to We're going to break for All rise for the jury. 16 (Whereupon the following proceedings 17 were had in open court outside the 18 presence of the jury:) 19 20 21 THE COURT: We're going to recess for lunch. on that clock. MR. HERBERT: Judge, if I can make a real -- just 22 real quick. 23 portion of the testimony that was not disclosed. 24 2:15 I'm going to make a motion to strike the THE COURT: We'll do that after the break. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 183 SR32 124535 1 STATE OF ILLINOIS 2 COUNTY OF C O O K ) ) ) SS: 3 4 5 6 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT - CRIMINAL DIVISION I, Kristen M. Parrilli, an Official Court 7 Reporter for the Circuit Court of Cook County, 8 Illinois, Judicial Circuit of Illinois, do hereby 9 certify that I reported in shorthand the proceedings 10 had on the hearing in the above-entitled cause; that 11 I thereafter caused the foregoing to be transcribed 12 into computer-aided transcription, which I hereby 13 certify to be a true and accurate transcript of the 14 proceedings had before the HONORABLE VINCENT M. 15 GAUGHAN, Judge of said court. 16 17 _____________________________ KRISTEN M. PARRILLI, CSR, RPR CSR No. 084-004723 Official Court Reporter Circuit Court of Cook County County Department Criminal Division 18 19 20 21 22 23 24 Dated this 20th day of September, A.D., 2018. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 185 SR33 124535 1 2 3 4 5 6 STATE OF ILLINOIS ) ) COUNTY OF C O O K ) IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT - CRIMINAL DIVISION THE PEOPLE OF THE STATE OF ILLINOIS, 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ) ) ) ) ) ) No. 17 CR 04286 (01) ) ) ) ) Plaintiff, 7 8 SS: vs. JASON VAN DYKE, Defendant. REPORT OF PROCEEDINGS had before the HONORABLE VINCENT M. GAUGHAN, Judge of said Court, on the 4th day of October, A.D., 2018. APPEARANCES: HON. JOSEPH McMAHON, State's Attorney of Kane County, Court-Appointed Special Prosecutor, and MR. JOSEPH CULLEN, MS. JODY GLEASON, MS. MARILYN HITE ROSS, MR. DANIEL WEILER, MS. MICHELLE KATZ, Assistant Special Prosecutors, On behalf of the People; MR. DANIEL HERBERT, MR. RANDY RUECKERT, MS. TAMMY WENDT, MS. ELIZABETH FLEMING, Attorneys at Law, On behalf of the Defendant. PAUL O'CONNOR, CSR KRISTEN M. PARRILLI, CSR, RPR Official Court Reporter Criminal Division CSR: #084-004723 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 1 SR34 124535 I N D E X 1 2 Case Name: 3 Case No: 4 Reporter Certificate: 5 PROCEEDINGS 6 CLOSING ARGUMENT On behalf of the People................... On behalf of the Defense.................. Rebuttal on behalf of the People.......... 8 25 67 JURY INSTRUCTIONS............................ 80 JURY QUESTION................................ 110 7 8 9 10 People vs. Jason Van Dyke 17 CR 04286 Page 126 PAGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 2 SR35 124535 1 (Whereupon the following proceedings 2 were had in open court outside the 3 presence of the jury:) 4 THE CLERK: Jason Van Dyke. 5 THE COURT: All right. 6 approach, please. All right. 7 8 9 10 MR. McMAHON: Good morning, Judge. 12 MR. CULLEN: 13 MS. HITE ROSS: 14 MR. WEILER: 15 MR. HERBERT: Jody Gleason on behalf of the State. Joe Cullen on behalf of the State. Marilyn Hite Ross for the State. Dan Weiler for the State. Good morning. 16 of Jason Van Dyke. 17 MR. RUECKERT: 20 Joe McMahon for the People of the State of Illinois. MS. GLEASON: 19 Will the attorneys please state their names. 11 18 Will the attorneys Dan Herbert on behalf Randy Rueckert on behalf of Jason Van Dyke. MS. FLEMING: Elizabeth Fleming on behalf of Jason Van Dyke. 21 MS. WENDT: Tammy Wendt for Mr. Van Dyke. 22 THE COURT: All right. At this time the jury is 23 on their way here. 24 we have -- Mr. McMahon, you brought a computer that's Again, some just housekeeping. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 3 SR36 Now 124535 1 stripped down with no other date on it? 2 MR. McMAHON: 3 THE COURT: 4 MR. McMAHON: 5 THE COURT: 6 7 8 9 jury? Yes, we did, Judge. Okay. Yes. So what will be going back to the Defense, you have yours on there, too? MR. HERBERT: Our exhibits? I don't know. I didn't see it yet. MS. FLEMING: The Defense has a USB drive with the 10 PowerPoint exhibits that were admitted into evidence 11 that we can provide to the State and then we can -- 12 THE COURT: 13 MS. FLEMING: 14 THE COURT: 15 MS. FLEMING: 16 THE COURT: Have you done that already? We have not done that yet. When were you going to? We can do it right now. Outstanding. All right. So we're in 17 recess. 18 settled in and everything else, we're going to start. 19 Everybody knows they were supposed to be here 20 15 minutes before we started and at the time that was 21 9:00 o'clock, so we're good as far as time, so ... 22 We're waiting on the jury. MR. HERBERT: Then once they get Judge, just one question. Are you 23 going to take -- Are you going to let the jurors go 24 back after the State's initial close? SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM Because we have 4 SR37 124535 1 to set up a computer. 2 to do it, Judge, but we might have a couple minutes lag 3 time. THE COURT: 4 5 about this: 6 right now. 8 11 12 It's ten after 9:00. We can't because the State has their in? THE COURT: Well, how long does it take to plug All right. Step back a little bit. Come up, Elizabeth. How long is it going to take you to set up? 13 MS. FLEMING: 14 THE COURT: 15 Set up the computer computer set up. 9 10 Well, I want you to know -- Here, how MR. HERBERT: 7 I don't really care how you want Three minutes. Okay. Then I'm going to have them walking back and forth? 16 MR. HERBERT: 17 THE COURT: I just wanted to bring the point up. No, you did bring up a good point. 18 After the Defense's closing, I'm going to have a short 19 recess and then the State will do rebuttal because the 20 instructions are long, so then I'll do the instructions 21 right after that. 22 MR. HERBERT: 23 THE COURT: 24 Okay. All right. But if you run into any difficulty, then we'll just have them take a recess, SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 5 SR38 124535 1 you know, so you're all right. 2 MS. FLEMING: 3 THE COURT: 4 5 Thank you. Court's in recess at this time. (A short recess was had.) THE CLERK: Jason Van Dyke. 7 THE COURT: All right. 8 THE SHERIFF: 9 THE COURT: 11 The jury's ready? Yes, Judge. Everybody else is ready. We're all set out there. All right. 12 jury out, please. 13 THE SHERIFF: 14 Great. Thank you. 6 10 All right. We're ready to go. Bring the All rise for the jury. (Whereupon the following proceedings 15 were had in open court in the 16 presence of the jury:) 17 18 THE COURT: Will everybody please be seated. Good morning, ladies and gentlemen. 19 THE JURY: 20 THE COURT: Good morning. You all know the two questions, so is 21 there anybody in our wonderful jury panel that cannot 22 say -- cannot answer the questions no, no? 23 raise your hand. 24 Please (No verbal response.) SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 6 SR39 124535 THE COURT: 1 2 You're outstanding. Thank you very much. 3 Ladies and gentlemen, we're at the conclusion 4 of the trial. Basically here's what's going to happen: 5 After my remarks, the attorneys will address you on 6 what we call closing arguments. 7 are a discussion of the facts that have been proven at 8 trial, reasonable inferences to be drawn from the 9 facts, along with circumstantial evidence. And closing arguments Anything that the lawyers say in closing 10 11 arguments is not to be considered as evidence. 12 you've seen, these are very professional attorneys with 13 high integrity, so this is just a quality control 14 admonishment. 15 closing arguments that conflicts with your individual 16 recollection of the evidence should be disregarded. 17 And as Anything that the attorneys say in Following closing arguments, I will read the 18 instructions of law that you are to follow in this 19 case. 20 with your verdict forms for your deliberation. 21 You'll get these instructions in writing along When you go back to the jury room to begin 22 your deliberations, your first duty will be to select 23 your foreperson. 24 your deliberations. She or he will preside during all of SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 7 SR40 124535 You have -- You know, I'm telling you, you 1 2 might get sick of it, but it has to be said, you've 3 just been outstanding. 4 attention and nobody could get a better jury than this 5 so I want to thank you right now. All right. 6 7 MS. GLEASON: 8 THE COURT: 9 MS. GLEASON: Everybody's been paying At this time, closing arguments. Thank you, Judge. State? Laquan McDonald was never going to 10 walk home that night. The defendant decided that on 11 the way to the scene. You heard what it was that he 12 said, I guess we'll have to shoot him. 13 knife in Laquan's hand that made the defendant kill him 14 that night, it was his indifference to the value of 15 Laquan's life. It wasn't the From the time the defendant fired that very 16 17 last shot and Officer Velez immediately picked up the 18 telephone and called the Fraternal Order of Police, the 19 police union, this case has been about exaggerating the 20 threat and trying to hide behind the police shield. 21 Why? 22 Laquan McDonald that night. 23 first shot, not the 16th shot. 24 Because there's no justification for shooting Okay. Not one shot. Not the Let's get one straight -- thing SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 8 SR41 124535 1 straight here. Laquan McDonald is not on trial. How 2 can anything about his troubled life possibly have 3 impacted the defendant when he made the decision to 4 shoot? 5 McDonald. The defendant knew nothing about Laquan Now, as Mr. McMahon told you in opening 6 7 statements, police officers can use deadly force in 8 very limited situations. And the judge is going to 9 instruct you on the law. And the judge will instruct 10 you that in each of those situations, an officer can 11 only use deadly force when it's reasonable and 12 necessary. 13 When a police officer puts on his uniform, he 14 knows that he can only use deadly force when it's 15 reasonable and necessary. 16 that an officer enters the police academy, they're 17 taught that. 18 stand who's an attorney who taught when the defendant 19 went through the academy they're taught that they only 20 can use deadly force in very limited situations when 21 it's reasonable and necessary. 22 You know from the minute You even heard from a witness on the Now, we all know society allows a police 23 officer to carry a deadly weapon. 24 you to stop. An officer can order An offer can tell you to do something. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 9 SR42 124535 1 An officer can even arrest you for certain situations. 2 However, they do not have the right to use deadly force 3 just because you will not bow to their authority. 4 because Laquan McDonald was ignoring him that night, he 5 did not have the right to use deadly force. Just We all know that authority can be abused. 6 7 And an officer knows that when he abuses his authority 8 and uses deadly force when it's not reasonable and 9 necessary, he has to be held accountable. This is not 10 the Wild West out here when an officer can shoot an 11 individual using deadly force and then try to justify 12 it later. 13 We know the defendant contemplated the 14 decision to shoot the -- Laquan before he even got out 15 of his vehicle, before he even laid eyes on Laquan 16 McDonald at the scene. 17 away he was contemplating shooting him and he never 18 adjusted that mindset once he got on the scene to see 19 what was really happening. 20 When he was a block and a half He shot too early, he shot too often, and he 21 shot for way too long. 22 McDonald's body where no reasonable police officer can 23 believe it was necessary. 24 certainly not the 16th shot. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM He fired 16 shots into Laquan Not the first shot, and 10 SR43 124535 What was Laquan doing? 1 2 from the officer. 3 officers. 4 away. He was surrounded by police And an officer with a Taser was 30 seconds Here's a clip. 5 He was veering away Within like two seconds, 6 Officer Walsh is going to kick the knife out of -- from 7 Laquan. 8 (Whereupon a video was played.) MS. GLEASON: 9 There he just kicked the knife. 10 There's Officer Ivankovich arriving on the scene with 11 the Taser. 12 knife from Laquan's hand. It's about 25 seconds after he kicked the The judge is going to instruct you as to the 13 14 law. 15 the defendant can be found not guilty of first degree 16 murder, guilty of first degree murder, or guilty of 17 second degree murder. 18 instruction and tell you what it is that we have to 19 prove for the defendant to be found guilty of first 20 degree murder. 21 And he's going to tell you that under the law, I'm going to read the jury It's sort of long, so bear with me. To sustain the charge of either first degree 22 murder or the charge of second degree murder, the State 23 must prove the following propositions. 24 proposition: The first The defendant performed the acts which SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 11 SR44 124535 1 caused the death of Laquan McDonald. Second 2 proposition: 3 intended to kill or do great bodily harm to Laquan 4 McDonald, or he knew that such acts would cause death 5 to Laquan McDonald, or he knew that the acts created a 6 strong probability of death or great bodily harm. 7 the third proposition: 8 in using the force which he used. That when the defendant did so, he And The defendant was not justified If you find from your consideration of all 9 10 the evidence that any one of these propositions has not 11 been proved beyond a reasonable doubt, your 12 deliberation on these charges should end and you should 13 return the verdict of not guilty of first degree 14 murder. 15 If you find from your consideration of all 16 the evidence that each one of these propositions has 17 been proved beyond a reasonable doubt, then you should 18 go on with your deliberations to decide whether a 19 mitigating factor has been proved so that the defendant 20 is guilty of the lesser offense of second degree murder 21 instead of first degree murder. 22 whether the defendant is guilty of the lesser offense 23 of second degree murder until and unless you first 24 determine that the State has proved beyond a reasonable SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM You may not consider 12 SR45 124535 1 doubt each of the previous stated propositions. 2 The defendant has the burden of proving by 3 the preponderance of the evidence that a mitigating 4 factor is present so that he is guilty of the lesser 5 offense of second degree murder instead of first degree 6 murder. 7 considering all the evidence in this case that it is 8 more probable true than not true that the following 9 mitigating factor is present: By this I mean that you must be persuaded That the defendant, at 10 the time he performed the acts which caused the death 11 of Laquan McDonald, believed the circumstances to be 12 such that they justified the deadly force he used but 13 his belief that such circumstance existed was 14 unreasonable. 15 If you find from your consideration of all 16 the evidence that the defendant has proved by a 17 preponderance of the evidence that the mitigating 18 factor is present so that he is guilty of the lesser 19 offense of second degree murder instead of the first 20 degree murder, you should find the defendant guilty of 21 second degree murder. 22 If you find from your consideration of all 23 the evidence that the defendant has not proved by a 24 preponderance of the evidence that the mitigating SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 13 SR46 124535 1 factor is present so that he is guilty the lesser 2 offense of second degree murder instead of first degree 3 murder, you should find the defendant guilty of first 4 degree murder. 5 So, these are the three propositions that the 6 State has to prove: 7 defendant performed the acts that caused the death of 8 Laquan McDonald. 9 reasonable doubt. 10 11 We have to prove, one, that the That's been proven beyond a We know the defendant fired those 16 shots that killed Laquan McDonald. The second proposition that we have to prove 12 is that when the defendant did so, one, he intended to 13 kill or do great bodily harm to Laquan McDonald. 14 he certainly knew that when he was firing 16 shots into 15 the body of Laquan McDonald that he was going to kill 16 him or do great bodily harm. 17 would cause death to Laquan McDonald. 18 we know that if you fire a gun into somebody 16 times, 19 you're probably going to cause death. 20 such acts created a strong probability of death or 21 great bodily harm to Laquan McDonald. 22 defendant knew at the time that he was firing each one 23 of those shots that there was -- he was creating a 24 strong probability of death or great bodily harm to SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM Well, Or he knew that such acts Well, certainly Or he knew that Certainly the 14 SR47 124535 1 Laquan McDonald. 2 The third proposition is that the defendant 3 was not justified in using the force which he used. 4 And, ladies and gentlemen, that's what's at contention 5 here. 6 force. 7 necessary. 8 that made it necessary to kill him, to use deadly 9 force, to shoot him one time versus 16 times. The defendant was not justified in using the And what do we mean by that? It wasn't Laquan wasn't doing anything at that moment The defendant had a million other options 10 11 that he could have used other than firing that gun. 12 And the biggest one he could have used was time, 13 patience. 14 25 seconds or so from Walsh kicking that gun [sic] away 15 from Laquan. 16 the defendant using deadly force. 17 18 19 20 We know that that Taser car arrived within There's absolutely no justification for THE COURT: Just a correction, there was -- he kicked the knife away, not the gun. MS. GLEASON: Did I say gun? I'm sorry. Often people have a misperception about what 21 we have to prove and they think that we have to prove 22 that murder was premeditated. 23 get an instruction that there's anything about 24 premeditation in this case. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM You're never going to The instructions that I 15 SR48 124535 1 just read to you and the three propositions, that's 2 what we have to prove. 3 Now, we don't have to prove that all shots 4 killed Laquan. You can find him guilty of first degree 5 murder if you believe just one of the bullets killed 6 him. 7 that Laquan McDonald needed every drop of blood in his 8 body. 9 wounds, basically he bled to death. However, we know from the evidence in this case Why? Because the cause of death from gunshot So every one of 10 those shots contributed to his death. They shortened 11 his life. 12 longer if he hadn't been shot all of those times. 13 you know, it's undisputed. 14 that when the -- Laquan died from multiple gunshot 15 wounds. Maybe he would have lived a little bit Both pathologists testified Now, the defendant is also charged with the 16 17 offense of aggravated battery with a firearm. 18 judge is going to read you this instruction. 19 shorter. 20 And, And the It's much To sustain the charge of aggravated battery 21 with a firearm, the State must prove the following 22 proposition: 23 injury to another person. Second proposition: That 24 the defendant did so by discharging a firearm. And, That the defendant intentionally caused SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 16 SR49 124535 1 third proposition: 2 justified in using the force which he used. 3 That the defendant was not If you find from your consideration of all 4 the evidence that each one of these propositions has 5 not been proved beyond a reasonable doubt, you should 6 find the defendant not guilty. If you find from your consideration of all 7 8 the evidence that each one of these propositions has 9 been proved beyond a reasonable doubt, you should find 10 the defendant guilty. So for aggravated battery of a firearm, we 11 12 have to prove, one, that the defendant intentionally 13 caused the injury to another person, Laquan McDonald. 14 Obviously he intended -- intentionally caused injury 15 when he shot him 16 times. 16 that he did so by discharging a firearm. 17 that he shot him. 18 again, the third proposition: 19 justified in using that force because the force was not 20 necessary. 21 The second proposition is We all know He discharged his firearm. And, That he was not Each of these 16 bullets caused injury to 22 Laquan, from the first shot to the 16th shot. 23 this by -- when both pathologists I think testified. 24 Laquan's body was riddled with bullets. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM You saw He had eight 17 SR50 124535 1 bullet wounds that went in one part of his body and out 2 the other. 3 the bullets stayed in. He had eight bullet wounds that went in and You saw that. 4 5 head. 6 The one right by his armpit. 7 his body. 8 his elbow there. 9 close-up of that one to the back. 10 You saw that. That's the graze wound to the Multiple shots to the chest area. One on the other side of Chest, multiple gunshot wounds. That was to There was one to his back. It's a You even have, like, bullets, fragments in his mouth. His body was riddled, broken, and bleeding 11 12 when the defendant finished those 16 shots. 13 one of those shots is a crime. 14 firearm. You know what? 15 And each Aggravated battery of a Dr. Teas even acknowledged on 16 cross-examination that each of these caused injury and 17 each caused blood loss. 18 about whether or not it was a significant injury or 19 blood loss. 20 No. 5, which was the elbow, she says it's not 21 significant. 22 bones. 23 ladies and gentlemen, it's definitely significant. 24 Really? Now, she said -- she quibbled You make that decision. Wound It went in and went out and it broke But in her mind, that's not significant. Well, She also quibbles about whether or not the 14 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 18 SR51 124535 1 or 15 additional shots matter. 2 that Laquan McDonald was alive each time the defendant 3 shot him. 4 crime. 5 and we know he had to physically pull the trigger each 6 time he fired that gun and hit Laquan's body, he 7 committed that offense of aggravated battery with a 8 firearm. 9 this is what his body looked like, riddled with bullets 10 They all mattered. The evidence is clear Each separate shot is a Each time the defendant pulled that trigger, And when Laquan, when it was all over with, and injuries. You're going to get another instruction from 11 12 the Court. 13 And this is the instruction: 14 that the acts of the defendant caused death of Laquan 15 McDonald, the State must prove beyond a reasonable 16 doubt that the defendant's acts were a contributing 17 cause of the death and that the death did not result 18 from a cause unconnected with the defendant. 19 it's not necessary that you find the acts of the 20 defendant were the sole and immediate cause of death. 21 And this instruction is about causation. In order for you to find However, Now that's sort of confusing because we know 22 all the acts of the defendant were the sole cause and 23 immediate cause of his death. 24 instruction is telling you is that all of the acts SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM So basically what this 19 SR52 124535 1 contributed. 2 his survival. 3 survival. 4 and the hand might not have caused his death that 5 night, but they all contributed because he bled. 6 last moments of his life are important. 7 made those last moments of his life a nightmare. 8 riddled his body with bullet after bullet. 9 every shot matters, because it shortened his life. 10 11 Laquan was entitled to the best chance of Each shot robbed him of that chance of It's certainly possible the shot to the head This The defendant He That's why It certainly mattered to Laquan McDonald. Now, the judge is also going to give you an 12 instruction as to official misconduct. 13 is charged with one count of official misconduct. 14 sustain the charge of official misconduct, the State 15 must prove the following propositions. 16 proposition: 17 And, second proposition: 18 capacity, the defendant knowingly performed an act 19 which he was forbidden to perform. 20 proposition: 21 the force which he used. 22 The defendant To The first That the defendant was a public employee. That when in his official And, the third The defendant was not justified in using If you find from the consideration of all the 23 evidence that each one of these propositions has been 24 proved beyond a reasonable doubt, you should find the SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 20 SR53 124535 1 defendant guilty. 2 If you find from your consideration of all 3 the evidence that any one of these propositions has not 4 been proved beyond a reasonable doubt, you should find 5 the defendant guilty [sic]. So, again, three propositions. 6 7 defendant was a public employee. 8 officer. 9 official capacity. He's a public employee. One: The He's a Chicago police That when in his You know he was on duty in his 10 official capacity as a police officer. And that he 11 knowingly performed an act which he was forbidden to 12 perform. 13 necessary or reasonable. 14 misconduct. 15 those 16 counts of aggravated battery with a firearm. That act is using deadly force when it is not That's the act of official That's the act of first degree murder and Now, from the very beginning the defendant 16 17 has exaggerated the threat. 18 Detective March, the detective who was on the scene 19 that night, that when McDonald was within 10 to 15 feet 20 of him, McDonald looked at him and raised the knife 21 across his chest over his shoulder, pointing the knife 22 at him? 23 his life he backpedalled and fired a handgun at 24 McDonald to stop the attack. Do you recall he told He also told the detective that in defense of SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM He told him that he 21 SR54 124535 1 continued to fire the weapon at McDonald as McDonald 2 was on the ground and McDonald appeared to be 3 attempting to get up. 4 seen the videos. 5 deadly force. None of that happened. You've He made it up to justify the use of What did the defendant tell you when he took 6 7 the stand? He told you that Laquan raised the knife by 8 his side across his body and pointed it to the left. 9 Defendant says it happened. It's not on the video. 10 It's not on the defendant's own animation of what 11 supposedly happened that night. 12 remember on cross, could he, that he told Detective 13 March those things that night? 14 that he told the detective that night that Laquan had 15 raised the knife over his shoulder and pointed it at 16 him. 17 convenient that he can't remember that he made that 18 statement or the others? 19 statements and the ones that he made on the witness 20 stand don't line up with the video. 21 And he couldn't He couldn't remember Well, you have to ask yourself, isn't that Perhaps that's because those He told you on the stand that he opened his 22 car door because he thought he could knock Laquan 23 McDonald down with the car door. 24 Was that even plausible or believable from where his SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM You saw the video. 22 SR55 124535 1 squad car was at? He was two lanes away from Laquan 2 McDonald at the point that he opens the door. 3 told Detective March that night he opened the door 4 because he was going to get out and confront Laquan at 5 that point but his partner, Walsh, told him to stay in. Now, he He says that Laquan McDonald looked at him 6 7 with an expressionless face and bugged-out eyes. 8 told Detective -- or Dr. Miller that he looked into 9 Laquan's soul. Really? He He looked at Laquan McDonald 10 for six seconds. 11 irrevocable decision to shoot him, not once, but 16 12 times. 13 Six seconds before he made the Now, he demonstrated that once he realized 14 Laquan was on the ground, that he brought the gun down 15 and that he brought the gun down and then he 16 reassessed. 17 point that Laquan is on the ground and trying to push 18 himself up with his left hand and his left shoulder is 19 coming up and he's still holding the knife and he can 20 still see his eyes and so what does he do? 21 him again and again. 22 And then he tells you -- he claims at that He shoots It was his decision to keep shooting even 23 after he says he reassessed. 24 keep shooting or just to finish Laquan off? SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM Well, was the decision to All of you 23 SR56 124535 1 saw that video. You've seen it numerous times. Does 2 it appear to you that Laquan McDonald was ever getting 3 up after he hit the ground? The answer is no. From the very beginning of this case, the 4 5 defendant has exaggerated the threat and continues to 6 exaggerate it. 7 force is not unbridled and not without restraint. 8 defendant used deadly force when he was wearing the 9 badge, when he was wearing a police uniform, and while The defendant's authority to use deadly The 10 he was under the cloak of a police officer. 11 know what? 12 necessary, when it's not justified, it is first degree 13 murder, it's 16 counts of aggravated battery, and it is 14 official misconduct because no one is above the law. 15 And you When deadly force is used when it's not THE COURT: Thank you very much. Ladies and gentlemen, at this time we're just 16 17 going to take a short break so that the Defense can set 18 up their computer. 19 THE SHERIFF: All rise for the jury. 20 (Whereupon the following proceedings 21 were had in open court outside the 22 presence of the jury:) 23 24 THE COURT: seated. All right. Will everybody please be Could I have Mr. Herbert and Mr. McMahon over SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 24 SR57 124535 1 here. 2 3 (A short recess was had.) THE COURT: All right. 4 Please remain seated. 5 THE SHERIFF: Court's back in session. Bring the jury out, please. All rise for the jury. (Whereupon the following proceedings 6 7 were had in open court in the 8 presence of the jury:) 9 10 11 THE COURT: Will everybody please be seated. Thank you. All right. 12 MR. HERBERT: 13 THE JURY: 14 MR. HERBERT: Mr. Herbert? Good morning. Good morning. Let me begin by thanking each and 15 every one of you for your time, your attention 16 throughout these past three weeks. 17 on behalf of my trial team, we appreciate it. 18 one of the most important commodities that we have and 19 we appreciate it. 20 On behalf of Jason, Time is As Judge Gaughan has said several times 21 throughout this case, without people like you, we 22 wouldn't have the form of government that we have. 23 You've been great but your job is just beginning. 24 job is just beginning because now you have to make a SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 25 SR58 Your 124535 1 determination that decides the fate of Jason Van Dyke, 2 his family. 3 MR. McMAHON: 4 THE COURT: 5 Judge, I'm going to object. Stay in the courtroom, stay in the inner part of the courtroom. MR. HERBERT: 6 Sustained. It's an important task that you 7 have. And our founding fathers recognized the 8 significance and the importance of trial by one's 9 peers. Jason Van Dyke chose you to decide his fate. 10 And the reason that our founding fathers decided that 11 it's so important, it's such a fundamental bedrock of 12 our criminal justice system that somebody can be tried 13 by their peers, it's because the founding fathers 14 recognized that it's us, the people, that can protect 15 somebody against an overzealous prosecutor, protect 16 somebody against tyrannous acts. 17 Van Dyke chose you guys to decide his fate. 18 And that's why Jason You might remember when I first talked to you 19 about this case and I said this case is a tragedy, 20 there's no question, but it's not a murder. 21 tragedy, but not a murder. 22 could have been prevented with one simple step. 23 (Gesturing). 24 20-some-minute rampage had Laquan McDonald dropped that It's a And it's a tragedy that At any point throughout that SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 26 SR59 124535 1 knife, he'd be here today. 2 You heard the prosecutor throughout this 3 case, but they've been talking about Laquan and what he 4 did to Laquan, Jason Van Dyke. 5 to really don't believe those fake tears by the 6 prosecutors about Laquan, because had Laquan McDonald 7 dropped that knife and given up, they would have 8 prosecuted him. 9 cage that they had him for years prior to him being out I would ask you to -- They would have put him back in that 10 on the street that night. 11 tears. So don't believe the fake Ladies and gentlemen, first degree murder, 12 13 that's the charges here, first degree murder. 14 unprecedented. 15 who responds to a scene, is called to a scene, comes 16 upon an individual with a knife acting in the strange 17 manner. 18 No premeditation? 19 the instructions; you don't have to have that. 20 you can use your commonsense, ladies and gentlemen, and 21 you can determine what is a murder. 22 It's It's unprecedented for a police officer First degree murder? No motive? No malice? Well, the State said, Oh you'll see Well, This isn't. The charge -- The accusation of murder is the 23 most serious accusation that somebody can put on 24 another person. An accusation of murder is branding SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 27 SR60 124535 1 that person as a murderer for the rest of his life. If 2 the Government is going to put that brand on somebody, 3 well, they better have the evidence to back it up. 4 as a jury can't accept that brand until and only if the 5 State proves the case. You Ms. Gleason talked about a lot of things in 6 7 her close. She wants to, as I told you at the onset 8 three weeks ago, the State wants you to watch the last 9 two minutes of this movie without knowing the context. They keep talking about this Taser. 10 11 Taser was only 30 seconds away. 12 30 seconds in that situation, first of all, Jason Van 13 Dyke, nor anyone else out there knew that this car was 14 30 seconds away. 15 you'll see the transcripts. 16 air and said, We're -- we're almost there. 17 even said they had a Taser. 18 then a car responded and said they're coming from a 19 distance. 20 All right. This Well, They want you to think that, but They never came over the They never They asked for a Taser and But then the prosecutors want you to think, 21 well, he should have just waited 30 seconds. 22 Isn't that what the argument is? 23 demonstrates the -- how preposterous their argument is 24 and their charges are in this case. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM Right? Well, I think that What was Jason Van 28 SR61 124535 1 Dyke supposed to do, like tell Mr. McDonald, Hold on; 2 we got a Taser coming? 3 the car with McDonald chasing him? 4 preposterous. 5 interpret it how a reasonable police officer would have 6 acted. Was he supposed to run around I know. It's But in this case, your job is to We as civilians, we can't recognize a lot of 7 8 things that police officers can. 9 know, the most dangerous part of their day is crossing The prosecutors, you 10 a busy street to go to Starbucks. We have to look at 11 this from Jason Van Dyke's perspective. 12 is not enough. Probable guilt The video is not enough. Ask yourself, from the State's opening when 13 14 they showed that video, did their case get any better? 15 Did they have one witness get up there and say, that 16 wasn't reasonable? 17 wasn't reasonable, but Urey Patrick -- they made Urey 18 Patrick watch the last two minutes of the movie without 19 showing him the context. 20 Laquan McDonald flicking out his knife. 21 seeing that blown up? 22 Patrick? 23 24 They had Urey Patrick who said it They blew up the shot of Remember Why didn't you show that to Urey He never saw it. How about Rudy Barillas attempt to be stabbed moments earlier? Why would you hide that fact from SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 29 SR62 124535 1 your expert? 2 And you'll see what happens with his opinion. 3 Because they needed to get an opinion. I've been doing this a long time. Normally 4 you're lucky to get two or three good points out of the 5 other side's witnesses. 6 case, the State's case, and tell me, did they prove 7 that case beyond a reasonable doubt? 8 These questions -MR. McMAHON: 9 10 THE COURT: 16 MR. HERBERT: 17 THE COURT: 20 21 Take it down. You Sure. And, Judge, we disclosed it to them last night, so I don't -THE COURT: 19 All right. MR. HERBERT: 15 18 This is -- certainly can argue it. 13 14 I'm going to object. This is a statement of the law and not -- 11 12 I want you to look at this law. That doesn't make --- know why they're objection now. -- any difference. It's still the And I'll instruct them of the law, not you. MR. HERBERT: So I cannot get into any portions of the law? THE COURT: You can -- You can argue but you're 22 not going to submit the statements from an appellate 23 decision up there. 24 MR. HERBERT: Okay. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 30 SR63 124535 1 THE COURT: 2 MR. HERBERT: 3 4 5 6 7 All right? You remember when you spoke -- or when Judge Gaughan spoke to you early on. MR. McMAHON: I'd ask that the -- Thank you. THE COURT: take it down. When I say take it down, Ms. Fleming, Do you understand me? 8 MS. FLEMING: Yes. 9 MR. HERBERT: And he told you that you have to 10 presume the defendant innocent. 11 all the way through every proceeding here. 12 through until you go back there and you look to see, 13 Did the State prove this case beyond a reasonable 14 doubt, beyond -- beyond a doubt based on reason? 15 That presumption goes Let's look at their evidence. It goes Their 16 evidence, their case. 17 of these points -- and there's a lot of them -- each 18 one independently is reasonable doubt. 19 determine what the evidence is. 20 facts, please. 21 22 23 24 I will submit to you that each It's for you to Take a look at these This is the first police officer, McElligott, that was on the scene. How soon after you get out of the car did he flip open that knife? SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 31 SR64 124535 1 Within seconds. 2 Within seconds? 3 That raised the threat level, didn't it? 4 It sure did -- or yes. 5 Flipped out a knife with you within, what, 6 ten feet away from him? 7 Yes. 8 So you pull your gun, right? 9 Yes. Officer McElligott pulls his gun. 10 11 pulls out his knife. 12 needed. McElligott, ready to shoot, if So you followed him from 10 to 15 feet away 13 14 Laquan with your gun drawn, he had his knife out, right? 15 Yeah. 16 That was a block away from the Burger King, 17 true? 18 It was less than a block. 19 Less than a block away. 20 And that's when he attacked your tire, right? 21 Yes. 22 And he attacked the windshield, right? 23 Yes. 24 When Officer Gaffney, who was sitting in the SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 32 SR65 124535 1 car, attempted to cut Laquan McDonald off with the 2 vehicle, did you at any time observe Laquan McDonald 3 stumble in any way? There was -- When he met with the vehicle, he 4 5 stumbled and spun and that's when he swung the knife at 6 the tire. Here's the theme, ladies and gentlemen. 7 We 8 talked about it in opening and you see it throughout 9 this case. Confrontation. When Laquan McDonald gets 10 confronted, what happens? He attacks. He was 11 confronted by Rudy Barillas. 12 attacked. 13 here. 14 officer, but he attacks. 15 each and every time as Jason Van Dyke gets to the 16 scene. What happened? He He was confronted by the police officers He attacks. Thankfully he didn't harm a police The threat level is rising 17 Still McElligott. 18 What, if anything, happened when Officer 19 Gaffney tried to cut off Laquan McDonald the second 20 time? 21 He swung the knife at the window. 22 By stabbing the tire and stabbing the 23 windshield, he has clearly raised the threat level, has 24 he not? SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 33 SR66 124535 1 Yes, he has. 2 And there are trucks parked there, correct? 3 Yes. 4 People park their cars there, right? 5 Yes. 6 Again, threat level rising. There are people parked there. And this is when 7 Jason Van Dyke first comes on the scene. 8 cut Laquan McDonald off from getting into that Burger 9 King. 10 He needs to And you heard, I think over the radio, you 11 testified that you may have heard somebody who might 12 have been calling a Taser? 13 Yes. 14 You don't know where that person was coming 15 from, right? 16 I didn't know, no. 17 And you didn't know how long it would take 18 for them to get there, correct? 19 Correct. 20 State makes a big point about, Well, 21 McElligott didn't shoot him. 22 completely different interaction with Laquan McDonald 23 than Jason Van Dyke. 24 expert witness will testify to. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM Well, McElligott had a It is of no relevance, as their 34 SR67 124535 1 If he would have turned and started walking 2 towards you with that knife, that would have changed 3 the situation completely? 4 Yes. 5 Thirty times. 6 7 Thirty times McElligott tells him to drop his knife. Next witness, State's witness, State's 8 witness to prove its case: 9 Remember him up on the witness stand. 10 11 12 Officer Joe Walsh. Did he prove the case for the State? Question: These videos don't show your perspective to what happened, correct? 13 Not at all. 14 These videos are far -- are from behind 15 McDonald, right? 16 Correct. 17 The State's only evidence that they can argue 18 with a straight face is this video. 19 essentially meaningless based upon all the testimony 20 that you've received here. 21 It shows the perspective but not the right perspective, 22 so we can't view just that video. 23 State wants you to do. 24 opening and their case from there went downhill. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM Well, the video is And we'll get into that. That's what the That's why they played it in 35 SR68 124535 So you're looking at it from a completely 1 2 different perspective than what everybody in here is 3 seeing, correct? 4 Yes. 5 Joe Walsh. This is the only individual that 6 was in a position that is anywhere remotely close to 7 where Jason Van Dyke was. 8 assumed that he was going to give the testimony that, 9 Wow, I shouldn't have shot him; I wouldn't have shot 10 him. He doesn't. 11 out of the Burger King. 12 him away from people. 13 his mindset. The only person. So I He talks about trying to keep him He talks about trying to keep That was their intent. That was Let's take a look at your perspective, 14 15 Mr. Walsh. You pull up and another police car had just 16 passed you; is that right? 17 Yes. 18 They're going north, away from where you're 19 going, correct? 20 Yes. 21 That was officer Velez who we'll get to in a 22 minute, but remember the significance. 23 pulls her vehicle away, her partner does who's driving, 24 because she's scared to death, he's scared to death, SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM Officer Velez 36 SR69 124535 1 because they think -- they know he's got a knife but 2 they think he's got a gun. 3 significant? 4 that point? 5 significant from the standpoint that the last line of 6 defense, who was it? Is that Did Jason Van Dyke think he had a gun at No. He testified truthfully. But it's Jason Van Dyke. You're the only person there -- Officer Walsh 7 8 They pull away. again -- that can stop him at that -- at that point? That's what I believe. 9 Last line of defense. You're trying to keep this guy with a knife 10 11 who's already damaged a police car, trying to keep him 12 away from people? 13 That was my mindset. 14 You had your gun drawn? 15 I did. 16 You had it drawn because he was danger, was 17 he not? 18 I believed he was. 19 When you get out of the car, you had to walk 20 behind Officer Van Dyke, right? 21 Initially I was ahead of him. 22 You had your gun out because you were 23 24 prepared to shoot if you had to; is that right? Yes. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 37 SR70 124535 Training. 1 2 He talks about the 21-foot rule. Do you remember that? 3 The rule is within 21 feet if your weapon is 4 holstered, the belief is or the drill they refer to is, 5 within 21 feet, an individual armed is going to stab 6 you and you may be lucky to get off two shots per the 7 drill or study that has been in existence since 1983. 8 9 Well, we know that it takes about a second and a half for Laquan McDonald to close the distance 10 that had he on Jason Van Dyke. We know that from 11 testimony, State's witnesses as well. 12 saw the demonstration of Mr. Barry Brodd. 13 Somebody coming at you with a knife. And we -- you Quick. Walsh tells him three or four times to drop 14 15 his knife. 16 walking towards you. 17 Laquan McDonald was walking away. 18 and gentlemen. 19 have done. 20 Jason Van Dyke, none of us do, but it's irrelevant to 21 our analysis here. 22 He keeps walking towards you. He keeps Huge part about the State's case: He wasn't, ladies I mean, I don't know what Laquan would I don't know if he would have attacked He wasn't walking away. The video shows that 23 he crosses over that line. 24 disputing that he did cross over that line. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM But, again, we're not But does 38 SR71 124535 1 it show that he's walking away? 2 that fence like I told you in opening, he could have 3 hopped that thing probably without even touching it. 4 He could have climbed that thing in a second. 5 didn't do that. 6 from running away to, okay, a slow skip. 7 Prepared to attack. 8 certainly was reasonable for Jason to think that, and 9 that's what the evidence shows here. 11 He He changed his behavior, remember, Why? And even if he wasn't, it Joe Walsh. 10 If he wanted to go to Two steps forward. Big deal about, Well, you didn't shoot him. Well, I didn't say I wouldn't have shot him. 12 13 I was confident that Officer Van Dyke took necessary 14 actions to save himself and myself. So you would have shot him if you had to, 15 16 right? 17 Yes. 18 Right there it's game over. If the only 19 person, the State's evidence, the only person that is 20 even close to the perspective of Jason Van Dyke, he 21 says it's reasonable. 22 upon a reasonable police officer. 23 evidence. 24 That's the basis here. Their case. Based Their Would he have been a danger to the public? SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 39 SR72 124535 1 Yes. 2 The video. 3 (Whereupon a video was played.) MR. HERBERT: 4 State's only evidence. 5 up. 6 knife. 7 that the State put in there? 8 showing? 9 demonstrated it. They blow it They blow it up to show him flicking out the Right there. The arrow. What is the arrow What is the arrow Exactly what Joe Walsh showed when he At that point, Laquan McDonald turned 10 and raised the knife over his shoulder. 11 wants -- wants you to think that -- that Jason Van Dyke 12 said he raised it over his shoulder like this 13 (indicating). 14 Looked right at him. He didn't. The State Raised it over his shoulder. Targeting. Changed his stance. 15 Officer Rettig, Paul Rettig, State's witness. 16 And, in fact, cameras -- watching a camera, 17 it's not the same as watching with your eyes, correct? 18 That's correct. 19 Remember? 20 What are some of the inherent problems with 21 22 He was the video guy. videos as opposed to seeing it with your own two eyes? Aside from the fact it doesn't capture 23 everything on a number of stills, there's numerous 24 differences. Color may be different from camera to SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 40 SR73 124535 1 your eye, contrast, the video system might not capture 2 the same -- it says collars, but it colors. 3 typo -- that you can see with your eyes. 4 images. It's a Distorts Yes, it may. 5 Two-dimensional, right? 6 Yeah, correct. 7 Difficult to judge proper depth on a video, 8 9 10 right? State's witness. It can be. Appeared different than it would with your 11 naked eye and that's because it's two dimensional, 12 correct, and so distances are distorted, correct? 13 They can be. 14 Dora Fontaine. Remember the female police 15 officer that came, that she arrived after -- just after 16 the shooting? 17 but she does talk about some facts that are certainly 18 helpful to Defense. 19 She didn't see the shooting, she said, Again, from the State's witnesses. He was walking southbound with a knife, 20 swaying a knife. Dora Fontaine. 21 said, that's what Joe Walsh said. That's what Jason 22 When you say swaying, what do you mean? 23 Swaying it back and forth. 24 That's what Jason said, what Joe Walsh said. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 41 SR74 124535 Do you remember being asked -- I want to ask 1 2 you, Officer Fontaine, based on your training and 3 experience, as the subject is lying on the ground here, 4 is he any longer a risk of life and death, physical 5 injury to you? 6 As long as he has a weapon, yes. 7 answer? Your answer was, He still has a weapon. And that's your 8 Yes. 9 And that would be your answer today? 10 Yes. 11 Urey Patrick, the State's witness. You're 12 going to see -- I'm going to show you a number of 13 factors that you can look at for the State's -- the 14 State's expert witness on the critical issue. 15 does he say? 16 reasonable doubt for the State? What Does he prove the case beyond a I don't think so. 17 McDonald was a risk and he needed to be -- 18 Right. 19 -- confronted. 20 And that was before you knew that he tried to stab some guy twice, right? 21 Yes. 22 You would agree with me that this knife is a 23 24 I didn't know that. deadly weapon? It can be, yes. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 42 SR75 124535 Why is a knife of such as this a deadly 1 2 weapon? 3 4 Because it can inflict serious injury and even death upon people. How much damage do -- Remember the question I 5 6 asked him? 7 His answer was great. 8 9 10 11 12 I said, How much damage can a knife do? He paused. A lot. How about a bulletproof vest? from stabbing. No protection It could penetrate the vest. That's what I said. You talked earlier about when police officers shoot, they don't shoot to kill people, correct? 13 Correct. 14 They shoot to eliminate the threat, correct? 15 Yes. 16 And, in fact, police officers don't shoot 17 because they want to kill somebody, correct? 18 I agree. 19 Important. The State has to prove Jason Van 20 Dyke guilty of all the charges that it filed but also 21 every single element within those charges. 22 prove every element within those charges, it has to be 23 not guilty. 24 Intent. Their witness: SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM If he don't He has no intent to 43 SR76 124535 1 kill. 2 it. The intent is to neutralize the threat, that's 3 Asked specifically, Urey Patrick, their 4 witness: 5 that he was shooting to eliminate the threat, whether 6 reasonable or not? I have no reason to believe that was not his 7 8 Jason Van Dyke's behavior, did you believe motivation. He didn't intend to kill him. 9 That's not 10 their goal. 11 they perceive that the threat has ended, because 12 frequently police officers miss with more shots than 13 they hit with and the effects of wounds take time to 14 accumulate. That's exactly what Jason Van Dyke said. 15 16 They're trained to continue shooting until It's exactly what he was experiencing. 17 Asked specifically about the question of 18 21 feet. 19 get to you before you can recognize a threat, draw and 20 fire your weapon. 21 awareness that someone 20 to 30 feet away from you can 22 be a threat. 23 24 The person with a knife at 21 feet. They can It's a training meant to heighten Their witness. Jason Van Dyke reloaded after emptying his -his firearm. State made a big deal about that, SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 44 SR77 124535 1 remember? 2 no evidence. 3 Why? Because they have no case. The fact that Jason Van Dyke reloaded his 4 weapon, significance in any way? 5 witness, Not in my mind. correct? 8 9 Urey Patrick, their In fact, it's immaterial to your analysis, 6 7 They have I would agree that when an officer starts shooting and when he stops shooting, however long or 10 however many rounds that takes, it's all a continuous 11 event. 12 separated -- separately assessed and judged, if you 13 will. It is not separate events that have to be Very, very important, ladies and gentlemen. 14 15 The State has decided to charge 16 separate counts of 16 aggravated battery. 17 have to prove that he had intent to fire each one of 18 those separately. 19 act. It is all one physical act. They can't. It's one continuous Urey Patrick right at the bottom here. 20 They Asked 21 about other police officers. 22 about, Well, there was this officer on the scene, he 23 didn't shoot; this officer on the scene, he didn't 24 shoot. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM They made a big deal 45 SR78 124535 Urey Patrick. 1 Well, the only perspective 2 that's relevant to your analysis would be the 3 perspective of Jason Van Dyke. 4 of the circumstances from his perspective, not from the 5 perspective of this car cam video. 6 Game over. 7 Would be an examination Their witness. He talks about imminent threat. Imminent 8 threat is one that doesn't necessarily have to happen 9 but could happen. Yeah, when -- when he turns with 10 that knife over his shoulder, we don't know. 11 would have dropped the knife after that. 12 would have turned back and ran over the fence. 13 don't know. 14 to the State's witness. 15 could happen. 16 Doesn't matter. Maybe he Maybe he We Doesn't matter, according Doesn't have to happen but it Urey Patrick. A police officer doesn't have 17 to wait until somebody inflicts injury on them for it 18 to be reasonable fire? 19 That's correct. 20 Urey Patrick again. He was a great witness. 21 Police officers are always reacting to what the person 22 they are interacting with does. 23 24 And you would agree with me -- I asked him this question: You would agree with me that a police SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 46 SR79 124535 1 officer is not required to trust that this individual 2 have faith in his good graces and doesn't have to trust 3 that this person will just give up, right? 4 That's correct. 5 And along those same lines, This isn't like a 6 boxing match or a sanctioned event. 7 have to give -- the person that they are encountering, 8 they don't have to give them a fair chance, do they? No. 9 The police don't They're taught to use -- once they make 10 the decision to use deadly force, to continue to use it 11 until they see -- until they perceive that the threat 12 has ended. That's their witness. 13 And important with 14 Urey Patrick as well. You heard it from Urey Patrick, 15 you heard it from Paul Rettig, you heard it from 16 Dr. Miller, you heard it from Nick Pappas, which we'll 17 get into. 18 weapon, they fire as quick as they can and get as many 19 rounds out as they can until they recognize that the 20 threat has been neutralized. When a police officer starts to fire their The State wants you to look at that video and 21 22 say, As soon as Laquan McDonald fell on the ground, 23 there couldn't have been any more shots. 24 true. It's not true. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM It's not It's not what their witness 47 SR80 124535 1 said. 2 It's not what the evidence is in this case. A police officer can fire -- we have evidence 3 of it, the FBI tested it, remember the State didn't 4 want to put that video in, but we -- we put it in, of 5 the person that had similar skills to Jason Van Dyke. 6 Six shots in one second. 7 only one and a half seconds to fall. 8 nine shots right there. State said, Well, it took him Okay. That's And then what did Urey Patrick, what did 9 10 every other witness say? 11 half to realize that a threat has been neutralized. 12 takes up to a second and a half for your eyes to see 13 the threat be neutralized, get back to your brain to 14 tell your brain to stop shooting. 15 second and a half. 16 18 shots that their witness justified Jason Van Dyke 17 using. 18 It takes up to a second and a It That's another That's nine more shots. That's He didn't fire 18 shots. There's a lot more on Urey Patrick. I'm sure 19 you have notes on him; but I think we've identified the 20 key points for him. 21 Well, Urey Patrick talks about things that 22 indicates to reasonable police officers that a threat 23 may be happening. 24 if -- if Laquan McDonald did not appear to be some kid Okay? SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM And this is important because 48 SR81 124535 1 whacked out on PCP acting really bizarrely, if this was 2 a kid in a Boy Scout uniform just walking down the 3 street with a knife and Jason Van Dyke shot him, yeah, 4 probably wouldn't be justified, but it's not. Urey 5 Patrick says you got to look for those signs. You're a 6 police officer. Their witness. Urey Patrick, remember when I asked him 7 8 about -- Well, he was a witness for the State. 9 said, Well, in fact, you recently testified in a case Well, I 10 where you found a police officer's actions were 11 reasonable when an individual raised a stick and they 12 were within 8 to 10 feet of that police officer when 13 they raised it as they attacked the police officer. 14 Raised the stick. 15 10 feet away. 16 dangerous as a stick? 17 The shooting happened. Eight to That's good, but a knife, not as Targeting. Urey Patrick, he talks about 18 that. He talks about targeting is when an individual 19 is watching an officer, paying attention to the 20 officer. 21 disturbed individual, signs of a potential threat, we 22 heard it from their witnesses. 23 make eye contact, somebody that doesn't respond to 24 dozens and dozens of police commands, marked squad cars It's an important point here. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM Signs of a Somebody that doesn't 49 SR82 124535 1 flying in every direction, somebody just walking down 2 the street not making eye contact, that's a sign of an 3 imminent threat. Testified by their witnesses. But how about when -- Remember we talked 4 5 about this in opening? 6 movie. I said, Think about a monster 7 Excuse me. 8 Think about a monster movie. 9 When they're walking down the street and say there's -- the victim 10 is hiding in the bush, you know, there's not much 11 danger here, but when that monster suddenly stops and 12 turns and looks right at that -- that victim in the 13 bush, I said -- I think I said that's when the music 14 starts to play. 15 filmmakers are like, Okay, I got them right now. 16 Van Dyke wasn't in a movie, ladies and gentlemen. 17 wasn't a video game. 18 19 That's when -- That's when the Jason It This is real life. Urey Patrick still. No way of knowing what Jason Van Dyke was seeing, experiencing or capturing? 20 I haven't talked with him. 21 Important, because the only way to fully -- 22 If you don't have video from somebody's perspective -- 23 Yeah, you could have talked to Joe Walsh. 24 talk to Joe Walsh. He didn't Joe Walsh would have said, This is SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 50 SR83 124535 1 what I saw. 2 danger. I would have shot the guy. He was a They didn't. 3 They didn't talk to Jason Van Dyke. Well, 4 the State made a big point about how Jason Van Dyke 5 spoke to -- to our witnesses. 6 Miller. 7 that? 8 That's how you get the context for the full two-hour 9 movie, instead of showing the last two minutes. He spoke to Larry He spoke to Barry Brodd. What's wrong with That's how you provide an in-depth analysis. Urey Patrick. 10 Video. State's only evidence. 11 That portion, that's not the same as seeing that in 12 real life? 13 Yes. 14 Dr. Miller. 15 You remember his testimony. It's pretty hard to read. I'll try my best here. So the main difference is for most of us 16 17 if -- if we're faced with danger, our brains are 18 telling us to do whatever you can to get away from the 19 danger. 20 it. 21 house is on fire, get out of it. 22 police officers, their task is a little different 23 because even though their brains are telling them to 24 run, get away, save yourself, their job is exactly to If your car's skidding off the road, correct If someone is chasing you, elude them. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM If the First responders, 51 SR84 124535 1 do the opposite. They have to run towards the danger. 2 Different than what an average civilian. 3 civilian like you and I is heightened to that danger, 4 heightened to that threat level, and therefore the 5 types of reaction that we see are probably a little 6 more common. The average The threat level, the actions of Laquan 7 8 McDonald on the ground, Jason Van Dyke saw them a lot 9 different than what was on that video. He saw it 10 different for a number of reasons. One, because that 11 video doesn't capture it properly. All the other 12 witnesses saw him moving. 13 to get up? 14 and about to get up? 15 you know -- you know who it would look like that to? 16 Someone that just had used his gun for the first time 17 in his career, working in the most dangerous 18 neighborhoods in the city of Chicago. 19 just seconds after he had to shoot somebody, the threat 20 looked bigger, it looked closer. 21 Van Dyke is a weak person? 22 some mental problems that prevent him from being a 23 reasonable police officer? 24 police officers in that situation would respond. But does it show him about Does it show him, you know, up to his knees SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM No, it doesn't. It doesn't. But That person, Does that mean Jason Does that mean that he has No. That's exactly how 52 SR85 124535 State makes -- talked about, Well, Jason Van 1 2 Dyke, he said, We're going to have to kill this guy, 3 somehow that that is a -- some negative connotation 4 towards Jason Van Dyke, some connotation that Jason Van 5 Dyke was going to shoot this guy because, as they say, 6 Jason was angry that this guy was not listening to 7 them. 8 at the young black boy. 9 opening? 10 You see any evidence of that? Jason was angry Do you remember that in Did you see any evidence that race had anything to do with this case? When you don't have evidence, you use 11 12 argument. 13 the arguments. 14 evidence came from this witness stand and were exhibits 15 that Judge Gaughan entered into evidence, and you'll 16 get those back there. 17 When you go back there, you can't listen to Put them out of your mind. Here. Reasonable. The Was it reasonable for 18 Jason Van Dyke to experience what he said he was 19 experiencing? 20 police officer hearing their fellow officers are being 21 attacked would be alert to a threat. 22 comment that he made to Joe Walsh. 23 24 Well, he was in fear. Any reasonable That goes to his When Jason Van Dyke hears that police officers are attacked, that's a big deal. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM The State 53 SR86 124535 1 wants you to think, Well, they just popped his tire and 2 he was just playing around. 3 was scared. Nobody was afraid. Nobody Well, why didn't you call -- why didn't you 4 5 call Mr. Gaffney in here to say, Yeah, it was nothing, 6 just a little misunderstanding. 7 would have said, I was scared to death, just like a 8 police officer in that situation -- Why? Because Gaffney 9 MR. McMAHON: I'm going to object and -- 10 MR. HERBERT: -- would have done. 11 MR. McMAHON: I'm going to object and ask them to 12 disregard what Officer Gaffney would have testified. 13 He was not a witness and there's no testimony about 14 what he would have done. 15 THE COURT: That would be sustained. Ladies and gentlemen, Officer Gaffney did not 16 17 testify. 18 statement made by Mr. Herbert. 19 20 That is not evidence. So disregard the last Thank you. Proceed, Mr. Herbert. MR. HERBERT: And, in fact, after Joe Walsh 21 testified, you didn't hear from any of those other 22 officers on the scene, right? 23 killed their case. 24 Why not? Joe Walsh had Game over. Dr. O'Donnell, the pharmacologist, interprets SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 54 SR87 124535 1 the results for Jason Van Dyke. Valproic Acid and 2 Risperdal, antipsychotic medicine. 3 was -- or, I'm sorry, Laquan McDonald was prescribed 4 those. 5 recent past of when he was killed. 6 that? Jason Van Dyke Had not been taking them that -- within the Significance of Yes, when coupled with PCP. Used PCP within a recently relative -- a 7 8 relatively recent time period. 9 at the levels that Laquan McDonald was tested at. Well, tell me about PCP And 10 remember that this is 56 nanograms I think it's 11 supposed to be. 12 blood. 13 from Dr. Teas, we heard from the ER doctor this is from 14 cavity blood. 15 the blood from the treatment. But anyways, this is from the cavity Remember we heard from the doctor, we heard This is after they have already diluted So they said the levels were probably higher 16 17 than this. 18 was a correct level, what can it do? 19 behavioral changes, aggressions, violence. 20 and violence. 21 But even a this level, assuming that this Delusions, Aggressive The effect of his antipsychotic medication, 22 not taking that, the second line -- third line there. 23 And PCP, even in a patient without any psychiatric 24 illness or any mental illness can cause severe SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 55 SR88 124535 1 psychiatric toxicity. He took the psychotropic drug 2 PCP, phencyclidine, which can cause severe rage, 3 aggression, violent behavior. Well, Jason Van Dyke didn't know that he -- 4 5 Laquan McDonald's blood level was 56 nanograms of PCP. 6 Agreed. 7 aggression, violent behavior, drug-induced psychosis, 8 that describes Laquan McDonald. 9 recognized it. Agreed. But those symptoms of rage, Did he know it was exactly PCP? 10 course not. 11 this guy was whacked out? 12 factor in his role to shoot? Absolutely. Slide lock. Remember he was our training instructor? 15 reloaded. 16 immediately reloaded. 17 drilled on that from the very beginning. Slide lock. Did that play a There's no question. 14 18 Of Did he as a police officer recognize that Nick Pappas. 13 Yeah, Jason Van Dyke State makes a big deal he The weapon should be That's how they're trained and Knives are more dangerous than guns in 19 certain situations. How quick can somebody cover seven 20 yards, 21 feet, almost double the feet of what we have 21 in the situation that Jason Van Dyke encountered Laquan 22 McDonald right before he shot? 23 1.5 seconds. 24 Yeah, but that's from somebody that is SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 56 SR89 124535 1 standing still, not from somebody that is already in 2 motion, like Laquan McDonald, so that time would have 3 been less? 4 Correct. 5 Intent. Again, Urey Patrick. 6 didn't have any intent to kill this guy. 7 witness. 8 9 Mr. Pappas. Jason Van Dyke State's Police officer's intent at shooting is to eliminate the threat, right? 10 Yes. 11 How about when he's on the ground, 12 Mr. Pappas, does that mean that he -- can he still be 13 considered a threat? 14 Certainly can be, yes. 15 Why? 16 This is Officer Velez. Because they can get up and reattack. Remember she -- she 17 was -- talked about how she thought that Laquan 18 McDonald had the gun and her partner drove away because 19 they were so afraid? 20 looks deranged, just like Jason saw it. 21 to the points that I'm making. 22 She sees Laquan McDonald. And she points You know, this is bizarre behavior. 23 lights, sirens. 24 There was nothing fazing him. He We had He was not looking in our direction. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM He was like -- he was in 57 SR90 124535 1 the twilight. 2 Holding his side. Thought he had a gun. Rudy Barillas, the working man, comes home 3 from a long day's work. 4 going to encounter the burglar, Laquan McDonald. Laquan got in there. 5 6 Little did he know he was We don't know how, but the gate was locked, right? 7 Yes. 8 What did you see? 9 Another person inside the truck. It's a burglary, ladies and gentlemen. 10 It's 11 a burglary, and that's significant when we get to the 12 peace officer's use of force statute in allowing 13 somebody to use deadly weapon -- deadly force. Got out of my truck, asked the person to 14 15 leave. He didn't. 16 What'd you do? 17 Called the police. 18 Did he continue to advance towards you? 19 This is our first sign of Laquan being 20 21 22 confronted that night. Consistent. Continued to advance towards you? How close did he get? 23 About three feet. 24 What did he do? SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 58 SR91 124535 1 Pulled out a knife and he wanted to hurt me. 2 And what did he do what that knife? 3 came towards me. He tried to stab me. Remember, and he demonstrated? 4 5 phone at him. 6 police that night save Rudy Barillas. 7 talk. Threw his He flees when the police come. The He couldn't He was tongue-tied. 8 9 4phe Remember his testimony about that knife that looks like a gun that looks like a knife? Jason Van 10 Dyke, was he thinking that as he was firing his weapon? 11 Probably not. 12 received it in a training bulletin, officer safety 13 bulletin. 14 officer's mind. But was it in the back of his mind? A lot of things in a reasonable police Ms. Alexander, remember she talked about 15 16 Laquan and his past? 17 that. 18 on it. Doesn't matter. Well, Jason didn't know about You'll get a jury instruction Talks about putting a slug in a judge's head. Dr. Teas, she's clear, cause of death: 19 20 He Gunshot Wound -- I'm sorry -- No. 4. The State in their case, they want you to 21 22 believe that every single bullet, every single shot 23 contributed to the death of Laquan McDonald. 24 true. It's not true. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM Dr. Teas gave it. It's not So what are 59 SR92 124535 1 they going to do to counter that? Bring in the 2 pathologist that just wrote those -- a couple of words 3 in there, kind of a cut-and-paste. 4 hemorrhage. 5 description of each shot. 6 person in. Just kind of throwing it in after a They didn't bring that Remember Dr. Arunkumar? 7 8 her. 9 come in? Pulpifaction and She's somewhere in Texas. Yeah, we can't find Why didn't that person Because that's the only -- The only evidence 10 that they have that every shot contributed to the death 11 was a couple of words that I argued were cut-and-paste 12 and put in a report. 13 Because she screwed up and she knew that if she came in 14 to testify, that's what she'd have to say. 15 rely on Dr. Arunkumar to rebut Dr. Teas? 16 Dr. Arunkumar is doing nothing more than what the State 17 did and what civilians will do, read something on a 18 sheet of paper and assume that it's true, despite the 19 evidence to the contrary. Why didn't they bring her in? So can you No. No evidence to the contrary. Bleeding from every -- from every gunshot? 20 21 Really? 22 They called the -- Deputy Murphy in yesterday to show 23 there was a lot of blood on the scene. 24 Why wasn't there a lot of blood on the scene? How much was there, half a cup? SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 60 SR93 124535 1 Yeah, that sounds about right. 2 Half a cup? If you're bleeding from every 3 extremity, there's not going to be more than a half a 4 cup? 5 was it all in here? 6 first or second shot as he was turned to face Jason Van 7 Dyke with his knife raised ready to attack. 8 of -- 9 Where was the blood? THE COURT: MR. HERBERT: 11 THE COURT: 12 MR. HERBERT: Because he was killed with that The rest I'm sorry? Ten minutes. Okay. Thank you. The rest of those shots, irrelevant at that 13 15 Why Ten minutes, Mr. -- 10 14 It was all in here. point. Jason Fries, the demonstration. State makes 16 a big deal about, Well, the State's own video doesn't 17 show Laquan McDonald raising the knife when he turns. 18 So what? Jason Fries was not here to do a 19 video game reenactment to show all the movements of 20 Laquan McDonald. 21 between Laquan McDonald and Jason Van Dyke. 22 If we had him put in all these things -- He said, I 23 take the conservative approach. 24 the distances. He was here to show the distance If we -- My analysis is to show And if you look at that distance, I SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 61 SR94 124535 1 think it gives a better perspective, but still not 2 Jason Van Dyke's. 3 Scott Patterson. He talks about that he's 4 got to shoot 80,000 rounds a year I think he said. 5 When I asked him, Do you ever shoot on the range and 6 just empty your gun, shoot all 16 rounds? 7 Oh, yeah. 8 Do you have the intent to fire each one of 9 those rounds? 10 No. No, you just fire. You empty the gun. 11 Barry Brodd. 12 Laquan [sic] was justified. 13 I'm finishing up here, ladies and gentlemen. What's your opinion? 14 All of those factors that I just discussed, as I said, 15 each and every one of them individually is reasonable 16 doubt. 17 But we've just been talking about the -- Jason Van 18 Dyke's -- being in reasonable fear for his life and 19 that's when he fired. 20 about. Did the State prove its case? Not even close. That's what we've been talking But remember when I told you in opening and I 21 22 showed you the same slide that I'm going to show you 23 right now? 24 here -- and you'll get this jury instruction -- and it I told you that there's a statute out SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 62 SR95 124535 1 talks about situations in which police officers can use 2 deadly force, even when it has nothing to do with 3 protecting themselves or somebody else. 4 in the opening, I'm like, I don't know what the State's 5 going to argue, but there's no evidence to rebut, to 6 dispute what we're showing here. 7 And I told you Remember we had Ms. Sayre from the police 8 academy talk about this? 9 retreat or desist from efforts to make a lawful arrest Peace officer need not 10 because of resistance. 11 likely to cause death or great bodily harm. 12 defense-of-life portion. 13 afraid for your life or somebody else's life. 14 He's justified in using force That's the Or, or, or even if you're not Here's where it differs between us -- a 15 regular citizen -- and a police officer: 16 allowed to use deadly force to prevent the arrest from 17 being defeated by resistance or escape and the person 18 to be arrested has committed or attempted a forcible 19 felony which involves the infliction or threatened 20 infliction of great bodily harm. 21 They're He certainly threatened to kill Rudy 22 Barillas, didn't he? 23 Gaffney in that vehicle. 24 shoot Jason Van Dyke [sic]. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM He certainly threatened Officer Right there alone, he can 63 SR96 124535 Or, even if -- even if he couldn't -- you 1 2 didn't think he met that category, The person to be 3 arrested is attempting to escape by use of a deadly 4 weapon. 5 use of a deadly weapon? 6 dropped it, he would have been under arrest. 7 weapon was the only thing that prevented the police 8 from arresting Jason Van Dyke -- Laquan McDonald, 9 excuse me. Was Jason Van Dyke [sic] trying to escape by But for this weapon, he The Or, even if you don't buy that one, this 10 11 individual indicates that he will endanger human life 12 or inflict great bodily harm unless arrested without 13 delay. 14 Ladies and gentlemen, in closing here -- 15 Thank you for the additional time, Judge. 16 In closing here, ladies and gentlemen ... 17 18 19 20 THE COURT: You have plenty of time. You have five minutes. MR. HERBERT: Oh, do I? Thank you. Ladies and gentlemen, the police saved Rudy 21 Barillas that night. They saved him because when they 22 arrived, that skirted Laquan McDonald off. 23 here to serve and protect. 24 squad car video? Remember I showed you the They can't retreat. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM Police are They can't run 64 SR97 124535 1 away like us. And they have to encounter people that 2 create their own destiny. 3 was the author, the choreographer of this story, and 4 Jason Van Dyke had to be brought into it. I told you Laquan McDonald So I'm going to ask you, when you go back to 5 6 the jury room and you start deliberating with your 7 fellow jurors, just remember that, you know, sometimes 8 the right decision is not always the easiest decision, 9 but you -- you owe it to yourself to make the right 10 decision here because nobody can fault you for making 11 the right decision. 12 your soul, you follow your mind. You also owe it to Jason Van Dyke. 13 14 you. 15 hands. 16 county, our country. 17 You follow your heart, you follow He chose you. He chose He's putting his fate in your We also owe it to our -- to our city, our You have a very important job here. It's a 18 critical task. I'm going to ask you to follow your 19 hearts, follow your minds, and do what you're required 20 to do here, which is to base your decision based upon 21 the evidence. 22 where we're going back to the jurors to decide this 23 because the people can decide not looking through 24 rose-colored glasses, not looking based upon motivation This is a -- This is a grassroots case SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 65 SR98 124535 1 2 for politics. It's you, the citizens. Give Jason Van Dyke the benefit. He's 3 innocent right now until you go in that room and say 4 he's guilty. 5 on the evidence. 6 impartially, I think there's really only one decision 7 you can make, and that's not guilty. 8 9 And the only way you can do that is based And if you review the evidence fair, THE COURT: Thank you. Thank you, Mr. Herbert. Ladies and gentlemen, we're just going to 10 take another short break while we switch over to the 11 different computer. 12 THE SHERIFF: All rise for the jury. 13 (Whereupon the following proceedings 14 were had in open court outside the 15 presence of the jury:) 16 17 18 THE COURT: take a ten-minute recess. 21 22 Court's in recess. (A short recess was had and a change of court reporters occurred.) 19 20 Ladies and gentlemen, we're going to THE COURT: remain seated. Court's back in session. Please Bring the jury out. (Whereupon, the following 23 proceedings were held in the 24 presence of the jury) SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 66 SR99 124535 1 THE COURT: 2 3 Everybody please be seated. Mr. McMahon. MR. McMAHON: Thank you, judge. We are here 4 because Jason Van Dyke didn't value the life of Laquan 5 McDonald enough to do anything but shoot him. 6 we know defendant Jason Van Dyke was contemplating 7 shooting Laquan before he even arrived. 8 laid eyes on Laquan McDonald. In fact Before he ever Mr. Herbert couple minutes ago said couple 9 10 things I want to talk about briefly. One of the things 11 that caught my attention was and I think this is a 12 quote. 13 probably wouldn't be reasonable or we wouldn't be here. 14 What's the difference between a boy scout acting the 15 way Laquan was and Laquan McDonald. A boy scout doing the exact same thing, that You're going to get all the law in this case. 16 17 All the law in the State of Illinois that applies to 18 the facts in this case. 19 Judge Gaughan. 20 because it doesn't apply to this case is motive. 21 malice. 22 Judge Gaughan will read to you and you will take back 23 to your deliberation room is all the law that applies 24 to the facts of this case. That law is going to come from What you're not going to consider Or premeditation. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM Or The jury instructions that And nowhere will you read a 67 SR100 124535 1 thing about motive, malice or premeditation. It's not 2 relevant, it's not part of your deliberation and it's 3 not anything that the State has to prove beyond a 4 reasonable doubt. Here's everything the defendant knew and 5 6 heard when he made the decision to shoot Laquan 7 McDonald. 8 9 10 11 12 (Audio played in open court). MR. McMAHON: That's what he heard. That's what he heard, what he saw was the following. (Video played in open court). MR. McMAHON: The first arrow Mr. Herbert talked 13 about, testimony that came from that witness stand is 14 that that arrow represents evidence of the first shot. 15 That arrow, first visual evidence of Laquan McDonald 16 being shot by Jason Van Dyke. 17 that witness stand he claimed that he killed Laquan 18 McDonald for four reasons. 19 Laquan was within 12 to 15 feet of Jason Van Dyke. 20 Three, Van Dyke told him to drop the knife and Laquan 21 ignored him. 22 and he looked right at him. 23 24 When the defendant took One, he had a knife. Two, And four, Laquan had big, bulging eyes Based on those four reasons, those four reasons alone, the defendant told you it was necessary SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 68 SR101 124535 1 to shoot and continue to shoot Laquan McDonald until he 2 laid motionless on Pulaski. 3 Let's explore those claims in detail. And 4 the context of everything that happened October 20 and 5 compare what the defendant did with what was necessary 6 by every other police officer and citizen that 7 encountered Laquan in any way that night. 8 truck yard to the moment of his death. 9 From the First it was Mr. Rudy Bureles and his wife, 10 confronting Laquan in the truck yard. 11 over Mr. Bureles and his wife three feet away and that 12 exact same, with that exact same knife that Laquan had 13 in his hand out on Pulaski. 14 off Laquan in that dark and isolated truck yard? 15 that vulnerable position when Mr. Bureles bends down 16 and grabs up, grabs a handful of rocks or stones? 17 threw his cell. phone and the stones and Laquan left to 18 avoid the confrontation. 19 or his wife. 20 Laquan standing What was necessary to fend In He Not a scratch on Mr. Bureles They were untouched. Mr. Bureles doesn't have the benefit of law 21 enforcement training, backup officers, or time. He 22 fended off Laquan McDonald with a cell. phone and a 23 fistful of rocks. 24 faced with a far worse threat from Laquan McDonald than Mr. Bureles and his wife, they are SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 69 SR102 124535 1 the defendant was. 2 the resources that were available to Jason Van Dyke. 3 And he had none of the training or How about Officer McElligott walking down 4 40th Street for a three, four, maybe five-block 5 distance. 6 the sidewalk. 7 Laquan hits the squad, popping the tire and hitting the 8 windshield. 9 10 to 15 feet away from him. He and Laquan are on the sidewalk and off Later when they try to cut him off, Officer McElligott told you that Laquan's Face to face with Laquan. 10 Laquan has that exact same knife in his hand. 11 Laquan is non-responsive. 12 He says He says Laquan is mumbling. Officer McElligott is alone on the street 13 without the nine other officers that are going to show 14 up with Jason Van Dyke and surround Laquan. 15 situation is even more confrontational than what Jason 16 Van Dyke faced when he shot Laquan on Pulaski. 17 McElligott doesn't shoot. That He doesn't shoot 18 because it wasn't necessary. 19 Calling for backup. 20 was in nearly the exact same situation as Jason Van 21 Dyke, probably worse. 22 the taser and he continues to follow Laquan. 23 24 He was buying time. Calling for a taser. McElligott McElligott buys time, waits for But the last couple weeks we've been talking about what was necessary during this entire trial. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 70 SR103 124535 1 This encounter demonstrates exactly why it wasn't 2 necessary to shoot Laquan McDonald. 3 loudly or dramatically Mr. Herbert argues, this proves 4 it was not necessary to shoot Laquan McDonald. Jason 5 Van Dyke, far more resources available to him. Officer 6 McElligott, he exercised patience. 7 chose not to and he instead used his gun. 8 9 No matter how Jason Van Dyke The knife, the distance, the defiance, and the look in the eyes. Those are the four things 10 defendant himself told you are the reasons he said it 11 was necessary to shoot and kill Laquan McDonald. Officer McElligott faced the exact same four 12 13 things. Laquan McDonald wasn't trying to attack anyone 14 that night. 15 desire to avoid confrontation at every stage. 16 in the Burger King, remember him on the video standing 17 outside the car with the hood up? 18 to the police as they were arriving and turning off of 19 Pulaski into the Burger King parking lot? 20 threaten him in any way? 21 guy to avoid harm, to avoid this rage and rampage that 22 we heard about but haven't seen from the actual 23 witnesses? 24 side of the street by the Burger King to fend off He was demonstrating his intent and his That guy Pointing Laquan out Did Laquan What is necessary for that What was necessary from that guy on the SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 71 SR104 124535 1 Laquan? 2 That's it. (Pointing). How about Becerra and Velez in the squad on 3 Pulaski as they drive north and approach Laquan. 4 Laquan shows the knife, he's right next to the squad. 5 Does he attack the squad? 6 away. 7 that they prepared, these red lines, their own video 8 shows Laquan walking away from the police at every 9 opportunity on 40th, in the Burger King, on Pulaski, Or does he turn and walk Even defendant's own animation, this slick video 10 when he's walking southbound on Pulaski and Jason Van 11 Dyke is walking northbound towards him. 12 walking away. 13 and every one of those signals? 14 15 16 Why? Laquan is Why did Jason Van Dyke ignore each Of avoidance? Maybe because he was intent on shooting Laquan even before he arrived. You now know that Jason Van Dyke was already 17 asking why someone didn't shoot Laquan McDonald before 18 he even arrived on the scene. 19 attempt to assess the situation himself. 20 decision to shoot as soon as he heard Laquan was 21 defying the orders to stop and drop the knife. 22 Before he made any He made the He chose not to wait and see how other police 23 officers who were already on the scene, some for 24 minutes, how they were handling the situation. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM He and 72 SR105 124535 1 Officer Walsh his partner, they went there to stop 2 Laquan McDonald just as Officer Walsh told you when he 3 walked in here and testified from that witness stand. 4 I want you to think about that for a moment. Walsh and the defendant driving to the scene 5 6 together. 7 didn't shoot him and then Walsh coming in here on the 8 witness stand and telling you that someone needed to 9 stop Laquan McDonald. 10 The defendant asks his partner why someone Someone needed to arrest Laquan McDonald. Not stop him with a hail of gunfire. 11 That's 12 not the self defense. 13 safety. 14 this kid because Laquan McDonald was not respecting the 15 authority of the Chicago Police Department and the 16 orders to stop and drop the knife. 17 That is not fear for personal That's the defendant coming in and shooting The decision to fire that first shot was 18 completely unnecessary. When defendant took that first 19 shot the following officers were already on the scene: 20 Gaffney and McElligott. 21 and Viramontes. 22 course the defendant and his partner Walsh. 23 police officers in five separate squad cars and two 24 more, Ivankovich and his partner Jose Torres 25 seconds Becerra and Velez. Mondragon and Sebastian. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM Fontaine And of Ten armed 73 SR106 124535 1 away with a taser. 2 called and on its way. 3 A taser that the defendant knew was Jason Van Dyke chose to ignore all of his 4 other options and he made the decision to use deadly 5 force. 6 five squads to barricade and hem in Laquan McDonald. 7 He had the option to bump Laquan McDonald with the 8 front of one of those squad cars, try and knock him 9 down. He had the option to use his and these other He had the option to hit him with the car door 10 as they drove past him. 11 on that radio that's attached to his shirt collar to 12 find out where the status, where that taser was. 13 He had the option of clicking He had the option to wait for that taser. 14 Let them use the taser on Laquan. 15 the option of time. 16 him nearly ten minutes of time and consideration and 17 assessment. 18 the time Jason Van Dyke got the call, he set out on a 19 collision course with Laquan McDonald. 20 shooting Laquan as Laquan tried to walk past him and 21 once again tried to avoid the police. 22 And of course he had Gaffney and McElligott, they gave Jason Van Dyke gave him six seconds. From And began Defendant chose, he made a conscious decision 23 to ignore every one of those other options. 24 the confrontation. He created Then he began to empty every bullet SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 74 SR107 124535 1 from his gun into the body of Laquan McDonald. 2 Let's talk about another decision that Jason 3 Van Dyke should have made but instead, he let his 4 partner and his gun make it for him. 5 been to stop shooting when he assessed and determined 6 that Laquan McDonald was on the ground. 7 chose not to stop. 8 more. It should have Jason Van Dyke Instead, he chose to shoot some Laquan McDonald was knocked down almost 9 10 instantly. At that point any threat was completely 11 extinguished. 12 shoot for 12.6 more seconds. 13 into a completely vulnerable and defenseless young man 14 who was twitching from each time Van Dyke pulled the 15 trigger and pumped another bullet into his body. Yet the defendant chooses to continue to He continued to shoot How is that reasonable and necessary? 16 At 17 this point Laquan is on the ground, he's completely 18 vulnerable and could not conceivably be a threat to 19 anyone. 20 to be arrested that night. We always agreed that Laquan McDonald needed 21 THE COURT: 22 MR. McMAHON: Seven minutes, Mr. McMahon. At this point, Laquan has hit the 23 ground. 24 an ambulance and a really good surgeon. What was necessary to accomplish the arrest is SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM Not more 75 SR108 124535 1 bullets that sap that desperately-needed blood out of 2 his bullet-riddled body. 3 When that shooting ended that night is where 4 the story starts to change. 5 there's an attempt to change the narrative and 6 exaggerate Laquan McDonald's actions and protect the 7 defendant. 8 9 Because almost immediately Judge Gaughan is going to inform you about judging the credibility and believability of the 10 witnesses. 11 Let me start with Leticia Velez. 12 about her for a minute. 13 officer who argued with her partner about whether she 14 wanted to go get a meal instead of responding to a call 15 for assistance from another officer. 16 I want to talk about just a couple here. Mr. Herbert talked You remember her. She's the The one who walked to the front of her car 17 unprotected when she said she thought Laquan was 18 reaching for a gun. 19 She is a disgrace. 20 I have got four words for her. Officer Walsh, Van Dyke's partner, he gave a 21 dramatic re-enactment of what he said Laquan did as 22 they approached. 23 feet from you as far as I am here now. 24 back, swung the knife, gave this deadly stare. Walsh gets off the witness stand few SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM He hunched his Is that 76 SR109 124535 1 on the video? Defendant doesn't even say that himself 2 when he takes the witness stand, when he testified. 3 None of that is supported by any of this independent 4 video or even the animation that they create with this 5 guy from California. Walsh's actions on the scene that night, they 6 7 speak louder than his words in this courtroom. 8 his action. 9 to know. Look at That flinch tells you everything you need That flinch means surprise. That flinch 10 means it was unexpected, that surprise at gunfire 11 because there wasn't a deadly threat. Let's talk about the independent evidence for 12 13 a moment. 14 courtroom, they show a pattern of avoidance in the 15 truck yard past the food depository on Pulaski. 16 Uncontested evidence that Jason Van Dyke shot Laquan 17 McDonald 16 times, hitting him each and every time. 18 Causing bodily harm and damage, blood loss that caused 19 his death. 20 Dash cam video and testimony in this Every medical expert that looked at this case 21 wrote in his or her opinion that Laquan McDonald died 22 of multiple gunshot wounds and that it's impossible to 23 sequence the order of gunshots. 24 Dr. Means who actually performed the autopsy. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 77 SR110 124535 1 Dr. Maskowski, the expert from the United States 2 Department of Defense. 3 a consulting report. Conferred, consulted and wrote Then Dr. Arunkumar, the director and chief 4 5 medical examiner of the Cook County Medical Examiner's 6 Office. 7 examiner's office in the country when it comes to 8 gunshot wounds. 9 Each and every gunshot wound bled. The busiest and most experienced medical Gave you clear and direct testimony. That the gunshots 10 were so close in time to each other that every one of 11 the shots would have caused blood loss. 12 was caused by a combination of the massive damage to 13 his body and blood loss from each gunshot wound. 14 That his death Here's what the other unpaid witnesses said 15 about Laquan McDonald's medical condition. 16 Murphy from the Cook County Sheriff's Department. 17 the one that walked up to Laquan McDonald, bent over, 18 was closest to him. 19 him gasping, he saw blood flowing from his body. 20 hard to watch. 21 his body pooling in a one by one foot diameter pool 22 around Laquan's body and running down the street 23 towards the curb. 24 Officer He's He heard him breathing, he heard It's But that video shows blood flowing from Paramedic Smith, who came and testified SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 78 SR111 124535 1 Laquan had a pulse, he had blood pressure. 2 on the scene and in the ambulance. 3 way to the hospital. He had it He lost it on the Van Dyke wants you to believe that Laquan 4 5 McDonald was alive and trying to get up and therefore, 6 he continued to be a threat and he was therefore 7 justified in all these other gunshots when Laquan was 8 on the ground. 9 and say it doesn't matter. But somehow Dr. Teas wants to come in He was dead. 10 good as dead. 11 other witnesses who were on the scene. He was as It doesn't even fit with any of the You heard from father and son, Jose Xavier 12 13 Torres. Concerned citizens. 14 connection to the police, no connection to the 15 prosecution, no connection to the defense. 16 interest is that justice be served. 17 walking on Pulaski. 18 away from the police without any threatening actions. 19 When the defendant shot and killed him. 20 THE COURT: 21 MR. McMAHON: 22 23 24 No bias or prejudice, no Their only They saw Laquan Surrounded by police. Walking Two minutes. What was his reaction? Why the F are they still shooting him. The defendant has committed serious crimes and we must hold him accountable like we hold every SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 79 SR112 124535 1 other citizen accountable. 2 it was completely unnecessary. 3 Dyke saw this. 4 Before he fired that first shot he was predisposed to 5 shooting Laquan McDonald before he even arrived. 6 When he shot the first time Laquan went down, Van He told you he had tunnel vision. Jason Van Dyke shot Laquan McDonald for 7 walking past him and ignoring his commands to stop and 8 drop the knife. 9 animation shows the indefensible acts of murdering Even that biased, self-serving 10 Laquan McDonald. 11 And five counts of aggravated battery with a firearm 12 and it ends early. 13 His own animation. Shows a murder. You know Laquan hits the ground hard and fast 14 after it ends. And you know what happens after they 15 end the video. It's Jason Van Dyke firing bullets, 16 ripping into the flesh of Laquan McDonald 16 times. 17 That's not justified, that's not necessary. 18 first degree murder. 19 THE COURT: 20 That's Thank you, Mr. McMahon. Ladies and gentlemen, the arguments have been 21 completed and I now will instruct you as to the law 22 that applies to this case. 23 24 Members of the jury, the evidence and arguments in this case have been completed and I now SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 80 SR113 124535 1 will instruct you as to the law. The law that applies 2 to this case is stated in these instructions and it is 3 your duty to follow all of them. 4 out certain instructions and disregard others. You must not single It is your duty to determine the facts and to 5 6 determine them only from the evidence in this case. 7 You are to apply the law to the facts and in this way 8 decide the case. You are not to concern yourselves with 9 10 possible punishment or sentence for the offense charged 11 during your deliberations. 12 trial judge to determine the sentence, should there be 13 a verdict of guilty. It is the function of the Neither sympathy nor prejudice should 14 15 influence you. You should not be influenced by any 16 person's race, color, religion or national ancestry, 17 gender or sexual orientation. From time to time it has been the duty of 18 19 this court to rule on the admissibility of the 20 evidence. 21 reasons for these rulings. 22 questions and exhibits which were withdrawn or to which 23 objections were sustained. 24 testimony and exhibits which this court has refused or You should not concern yourselves with the SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM You should disregard You should disregard 81 SR114 124535 1 2 stricken. The evidence which you should consider 3 consists only of the testimony of the witnesses and the 4 exhibits which this court has received. 5 consider all the evidence in the light of your own 6 observations and experience in life. 7 You should Neither by these instructions nor by any 8 ruling or remark which I have made do I mean to 9 indicate any opinion as to the facts or as to what your 10 11 12 13 verdict should be. Faithful performance by you of your duties as jurors is vital to the administration of justice. Only you are the judges of the believability 14 of the witnesses and of the weight to be given to the 15 testimony of each of them. 16 testimony of any witness you may take into account his 17 ability and opportunity to observe, his memory, his 18 manner while testifying, any interest, bias or 19 prejudice he may have, and the reasonableness of his 20 testimony considered in the light of all the evidence 21 in the case. 22 In considering the You should judge the testimony of the 23 defendant the same manner as you judge the testimony of 24 any other witness. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 82 SR115 124535 Opening statements are made by the attorneys 1 2 to acquaint you with the facts they expect to prove. 3 Closing arguments are made by the attorneys to discuss 4 the facts and circumstances in the case and should be 5 confined to the evidence and to reasonable inferences 6 to be drawn from the evidence. 7 statements nor closing arguments are evidence, and any 8 statement or argument made by the attorneys which is 9 not based on the evidence should be disregarded. Neither opening Those of you who took notes during the trial 10 11 may use your notes to refresh your memory during jury 12 deliberations. 13 recollection of the evidence. 14 taken notes does not necessarily mean that his or her 15 recollection of the evidence is any better or more 16 accurate than the recollection of a juror who did not 17 take notes. 18 service in this case your notes will be collected by 19 the deputy and destroyed. 20 your notes will remain confidential and no one will be 21 allowed to see them. 22 Each juror should rely on his or her Just because a juror has When you are discharged from further Throughout that process, The defendant is charged with the offense of 23 first degree murder. 24 guilty. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM The defendant has pleaded not 83 SR116 124535 Under the law, a person charged with first 1 2 degree murder may be found one, not guilty of first 3 degree murder or two, guilty of second degree murder or 4 three -- I'm sorry, I have to read this again. The defendant is charged with the offense of 5 6 first degree murder. 7 guilty. 8 degree murder may be found one, not guilty of first 9 degree murder, or two, guilty of first degree murder or 10 11 The defendant has pleaded not Under the law, a person charged with first three, guilty of second degree murder. The defendant is also charged with the 12 offenses of aggravated battery with a firearm. 13 defendant has pleaded not guilty to those charges. 14 The defendant is also charged with the 15 offense of official misconduct. 16 pleaded not guilty to that charge. 17 The The defendant has The State has also alleged that during the 18 commission of the offense of first degree murder, the 19 defendant personally discharged a firearm that 20 proximately caused death to another person. 21 defendant has denied the allegation. 22 The The charges against the defendant in this 23 case are contained in a document called the indictment. 24 This document is the formal method of charging the SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 84 SR117 124535 1 defendant and placing the defendant on trial. 2 not any evidence against the defendant. 3 is presumed to be innocent of the charges against him. 4 This presumption remains with him throughout every 5 stage of the trial and during your deliberations on the 6 verdict and it is not overcome unless from all the 7 evidence in this case you are convinced beyond a 8 reasonable doubt that he's guilty. 9 It is The defendant The State has the burden of proving the guilt 10 of the defendant beyond a reasonable doubt and this 11 burden remains on the State throughout the case. 12 defendant is not required to prove his innocence. 13 The Defendant is presumed to be innocent of the 14 charge against him of first degree murder. 15 presumption remains with him throughout every stage of 16 the trial and during your deliberations on the verdict 17 and it is not overcome unless from all the evidence in 18 this case, you are convinced beyond a reasonable doubt 19 that the defendant is guilty. 20 This The State has the burden of proving that the 21 defendant is guilty of first degree murder and this 22 burden remains on the State throughout the case. 23 defendant is not required to prove his innocence. 24 The If the State proves beyond a reasonable doubt SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 85 SR118 124535 1 that the defendant is guilty of first degree murder, 2 the defendant then has the burden of proving by a 3 preponderance of the evidence that a mitigating factor 4 is present so that he is guilty of the lesser offense 5 of second degree murder and not guilty of first degree 6 murder. 7 present you should consider all the evidence bearing on 8 this question. 9 In deciding whether a mitigating factor is The phrase preponderance of the evidence 10 means whether considering all the evidence in this 11 case, the proposition on which the defendant has the 12 burden of proof is more probably true than not true. 13 The State has also alleged that during the 14 commission of the offense of first degree murder the 15 defendant personally discharged a firearm that 16 proximately caused death to another person. 17 defendant is presumed to be innocent of this 18 allegation. 19 defendant throughout every stage of the trial and 20 during your deliberations on the verdict and is not 21 overcome unless from all the evidence in this case you 22 are convinced beyond a reasonable doubt that the 23 allegation is proven. 24 The This presumption remains with the The State has the burden of proving the SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 86 SR119 124535 1 allegation beyond a reasonable doubt and this burden 2 remains on the State throughout the case. 3 defendant is not required to prove the -- I'm sorry. 4 The defendant is not required to disprove the 5 allegation. 6 The Circumstantial evidence is proof of facts or 7 circumstances which give rise to a reasonable inference 8 of other facts which tend to show the guilt or 9 innocence of the defendant. Circumstantial evidence 10 should be considered by you together with all the other 11 evidence in the case in arriving at your verdict. 12 You have before you evidence that the 13 defendant made statements relating to the offenses 14 charged in the indictment. 15 whether the defendant made the statements and if so, 16 what weight should be given to the statements. 17 It is for you to determine In determining the weight to be given to a 18 statement, you should consider all the circumstances 19 under which it was made. 20 It is proper for an attorney to interview or 21 attempt to interview a witness for purposes of learning 22 the testimony the witness will give. 23 does not require a witness to speak to an attorney 24 before testifying. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM However, the law 87 SR120 124535 1 The believability of a witness may be 2 challenged by evidence that on some former occasion he 3 made a statement that was not consistent with his 4 testimony in this case. 5 ordinarily may be considered by you only for a limited 6 purpose of deciding the weight to be given to the 7 testimony you heard from the witness in this courtroom. 8 However, you may consider a witness' earlier 9 inconsistent statement as evidence without this Evidence of this kind 10 limitation when the statement was made under oath at a 11 trial, hearing or proceeding, or the statement 12 narrates, describes or explains an event or condition 13 the witness had personal knowledge of and the witness 14 acknowledged under oath that he made the statement. 15 It is for you to determine whether the 16 witness made the earlier statement and if so, what 17 weight should be given to that statement. 18 In determining the weight to be given to an 19 earlier statement, you should consider all the 20 circumstances under which it was made. 21 In this case the State must prove beyond a 22 reasonable doubt the proposition that the defendant was 23 not justified in using the force which he used. 24 have heard testimony of Laquan McDonald's alleged prior SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM You 88 SR121 124535 1 acts of violence. It is for you to determine whether 2 Laquan McDonald committed those acts. 3 that Laquan McDonald committed those acts, you may 4 consider that evidence in deciding whether the State 5 has proved beyond a reasonable doubt that the defendant 6 was not justified in using the force which he used. If you determine An electronic recording has been admitted 7 8 into evidence. 9 recording, you are being given a transcript of the In addition to the electronic 10 electronic recording. 11 what the transcriber believes what is said on the 12 electronic recording, and merely serves as an aid when 13 you listen to the electronic recording. 14 recording and not the transcript is the evidence. 15 you perceive a conflict between the electronic 16 recording and the transcript, the electronic recording 17 controls. 18 The transcript only represents The electronic If The term public employee means a person other 19 than a public officer who is authorized to perform any 20 official function on behalf of and is paid by the State 21 or any of its political subdivisions. 22 A person is considered to personally 23 discharge a firearm when he while armed with a firearm, 24 knowingly fires a firearm causing the ammunition SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 89 SR122 124535 1 2 projectile to be forcefully expelled from the firearm. The word firearm means any device by whatever 3 name known, which is designed to expel a projectile or 4 projectiles by action of an explosion, expansion of gas 5 or escape of gas. 6 A peace officer need not retreat or desist 7 from efforts to make a lawful arrest because of 8 resistance or threatened resistance to the arrest. 9 is justified in use of any force which he reasonably He 10 believes to be necessary to effect the arrest or defend 11 himself and/or another from bodily harm while making 12 the arrest. 13 However, he is justified in using force 14 likely to cause death or great bodily harm only when he 15 reasonably believes that such force is necessary to 16 prevent one, death or great bodily harm to himself or 17 another; or two, the arrest from being defeated by 18 resistance or escape and the person to be arrested has 19 committed or attempted aggravated assault which 20 involves the infliction or threatened infliction of 21 great bodily harm. 22 defeated by resistance or escape and the person to be 23 arrested is attempting to escape by using a deadly 24 weapon or otherwise indicates that he will endanger Or three, the arrest from being SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 90 SR123 124535 1 human life or inflict great bodily harm unless arrested 2 without delay. 3 The phrase reasonably believes or reasonably 4 believes means that a person concerned acting as a 5 reasonable person, believes the described facts exist. 6 A mitigating factor exists so as to reduce 7 the offense of first degree murder to the lesser 8 offense of second degree murder if at the time of the 9 killing of the defendant -- at the time of the killing, 10 the defendant believes that circumstances exist which 11 would justify the deadly force he uses, but his beliefs 12 that such circumstances exist is unreasonable. 13 In order for you to find the acts of the 14 defendant caused the death of Laquan McDonald, the 15 State must prove beyond a reasonable doubt that the 16 defendant's acts were a contributing cause of death and 17 the death did not result from a cause unconnected to 18 the defendant. 19 find the acts of the defendant were the sole and 20 immediate cause of death. 21 However, it is not necessary that you Force which is likely to cause death or great 22 bodily harm includes firing of a firearm in the 23 direction of a person to be arrested. 24 there's no intent exists to kill or inflict great SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM Even though 91 SR124 124535 1 2 bodily harm. A person commits the offense of first degree 3 murder when he kills an individual without lawful 4 justification if in performing the acts which caused 5 the death, he intended to kill or do great bodily harm 6 to that individual, or he knows that such acts would 7 cause death to that individual, or he knows that such 8 acts creates a strong probability of death or great 9 bodily harm to that individual. 10 To sustain the charge of first degree murder 11 or the charge of second degree murder, the State must 12 prove the following proposition. 13 That the defendant performed the acts which caused the 14 death of Laquan McDonald and second proposition, that 15 when the defendant did so, he intended to kill or do 16 great bodily harm to Laquan McDonald or, he knew that 17 such acts would cause death to Laquan McDonald or he 18 knew that such acts created a strong probability of 19 death or great bodily harm to Laquan McDonald. 20 21 22 First proposition. And third proposition, that the defendant was not justified in using the force which he used. If you find from your consideration of all 23 the evidence that any one of these propositions has not 24 been proven beyond a reasonable doubt, your SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 92 SR125 124535 1 deliberations on these charges should end and you 2 should return a verdict of not guilty to first degree 3 murder. If you find from your consideration of all 4 5 the evidence that each one of these propositions has 6 been proven beyond a reasonable doubt, then you should 7 go on with your deliberations to decide whether a 8 mitigating factor has been proved so that the defendant 9 is guilty of the lesser offense of second degree murder 10 instead of first degree murder. You may not consider 11 whether the defendant is guilty of the lesser offense 12 of second degree murder until and unless you have first 13 determined that the State has proven beyond a 14 reasonable doubt each of the previously-stated 15 propositions. The defendant has the burden of proving by a 16 17 preponderance of the evidence that a mitigating factor 18 is present so he is guilty of the lesser offense of 19 second degree murder instead of first degree murder. 20 By this I mean you must be persuaded considering all 21 the evidence in this case that it's more probably true 22 than not true that the following mitigating factor is 23 present. 24 That the defendant at the time he performed SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 93 SR126 124535 1 the acts which caused the death of Laquan McDonald 2 believed the circumstances to be such that they 3 justified deadly force he used, but his belief that 4 such circumstances existed was unreasonable. If you find from your consideration of all 5 6 the evidence that the defendant has proved by a 7 preponderance of the evidence that a mitigating factor 8 is present so that he is guilty of the lesser offense 9 of second degree murder instead of first degree murder, 10 you should find the defendant guilty of second degree 11 murder. If you find from your consideration of all 12 13 the evidence that the defendant has not proved by a 14 preponderance of the evidence that the mitigating 15 factor is present so that he is guilty of the lesser 16 offense of second degree murder instead of first degree 17 murder, you should find the defendant guilty of first 18 degree murder. A person commits the offense of aggravated 19 20 battery with a firearm when he by means of discharging 21 a firearm, intentionally causes injury to another 22 person. 23 official misconduct when his official -- when in his 24 official capacity, he knowingly performs an act which A public employee commits the offense of SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 94 SR127 124535 1 2 he knows is forbidden by law to perform. To sustain the charge of official misconduct, 3 the State must prove the following propositions. 4 proposition, that the defendant was a public employee 5 and second proposition, that in his official capacity 6 the defendant knowingly performed an act which he knew 7 he was forbidden to perform and third proposition, that 8 the defendant was not justified in using the force 9 which he used. 10 First If you find from your consideration of all 11 the evidence that each one of these propositions has 12 been proven beyond a reasonable doubt, you should find 13 the defendant guilty. 14 consideration of all the evidence that any one of these 15 propositions has not been proven beyond a reasonable 16 doubt, you should find the defendant not guilty. 17 18 19 20 If you find from your Could I have the attorneys over here for a second, please. (Discussion had off the record). THE COURT: Ladies and gentlemen, these are the 21 propositions that are necessary to find, sustain the 22 charge of aggravated battery with a firearm. 23 24 To sustain the charge of aggravated battery with a firearm, State must prove the following SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 95 SR128 124535 1 propositions. 2 intentionally caused injury to another person and 3 second proposition, that the defendant did so by 4 discharging a firearm and third proposition, that the 5 defendant was not justified in using the force which he 6 used. 7 First proposition, that the defendant If you find from your consideration of all 8 the evidence that each one of these propositions has 9 been proven beyond a reasonable doubt, you should find 10 the defendant guilty. 11 consideration of all the evidence that any one of these 12 propositions has not been proven beyond a reasonable 13 doubt, you should find the defendant not guilty. 14 If you find from your Ladies and gentlemen, when you retire to the 15 juryroom you first will elect one of your members as 16 your foreperson. 17 deliberations on your verdict. 18 verdict must be unanimous, your verdict must be in 19 writing and signed by all of you, including your 20 foreperson. 21 of first degree murder. 22 She or he will preside during your Your agreement on a The defendant is charged with the offense Under the law, a person charged with first 23 degree murder may be found one, not guilty of first 24 degree murder or two, guilty of first degree murder or SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 96 SR129 124535 1 three, guilty of second degree murder. Accordingly, 2 you will be provided three verdict forms; not guilty of 3 first degree murder, guilty of first degree murder, and 4 guilty of second degree murder. 5 verdict forms you should select the one verdict form 6 that reflects your verdict and sign it as I have 7 stated. 8 Sign only one of these verdict forms. From these three Do not write on the other two verdict forms. The defendant is also charged with the 9 10 offenses of aggravated battery with a firearm, 16 11 counts. 12 count. 13 aggravated battery with a firearm and a guilty of 14 aggravated battery with a firearm as to each count. 15 From these two verdict forms you should select the one 16 verdict form that reflects your verdict pertaining to 17 the charge of aggravated battery with a firearm as I 18 have stated. 19 other verdict form pertaining to the charge of 20 aggravated battery with a firearm. 21 You'll receive two forms of verdict as to each You will be provided with both a not guilty of You should not write on, at all on the The defendant is also charged with the 22 offense of official misconduct. 23 forms of verdict as to this charge. 24 provided with both a not guilty of official misconduct SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM You will receive two You will be 97 SR130 124535 1 and a guilty of official misconduct form of verdict. 2 From these two verdict forms you should select the one 3 verdict form that reflects your verdict pertaining to 4 the charge of official misconduct and sign it as I have 5 stated. 6 verdict form pertaining to the charge of official 7 misconduct. 8 9 You should not write at all on the other The State has also alleged that during the commission of the offense of first degree murder, the 10 defendant personally discharged a firearm that 11 proximately caused death to another person. 12 find the defendant is not guilty of the offense of 13 first degree murder, you should not consider the 14 State's additional allegation regarding the offense of 15 first degree murder. 16 guilty of first degree murder, you should then go on 17 with your deliberations to decide whether the State has 18 proven beyond a reasonable doubt the allegation that 19 during the commission of the offense of first degree 20 murder, the defendant personally discharged a firearm 21 that proximately caused death to another person. 22 If you If you find the defendant is Accordingly, you will be provided with two 23 verdict forms. 24 the defendant personally discharged a firearm that We the jury find the allegation that SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 98 SR131 124535 1 proximately caused death to another person was not 2 proven. 3 discharged a firearm that proximately caused death to 4 another person was proven. 5 forms you should select the one verdict form that 6 reflects your verdict and sign it as I have stated. 7 not write on the other verdict form. 8 these verdict forms. 9 And we the jury find the defendant personally From these two verdict Do Sign only one of Your agreement on a verdict as to the 10 allegations must be unanimous, your verdict must be in 11 writing and signed by all of you, including your 12 foreperson. 13 14 15 16 17 18 19 20 21 22 23 24 Could I have the attorneys over here, please. (Discussion had off the record). THE COURT: Ladies and gentlemen, at this time I am now going to read the verdict forms. We the jury find the defendant Jason Van Dyke, not guilty of first degree murder. We the jury find the defendant Jason Van Dyke, guilty of first degree murder. We the jury find the defendant Jason Van Dyke, guilty of second degree murder. We the jury find the allegation that during the commission of the offense of first degree murder, SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 99 SR132 124535 1 the defendant personally discharged a firearm that 2 proximately caused death to another person was not 3 proven. 4 We the jury find the allegation that during 5 the commission of the offense of first degree murder, 6 the defendant personally discharged a firearm that 7 proximately caused death to another person was proven. 8 9 10 Ladies and gentlemen, these are the aggravated battery with a firearm verdict forms. We the jury find the defendant Jason Van 11 Dyke, not guilty of aggravated battery with a firearm. 12 This pertains to the first shot. 13 We the jury find the defendant Jason Van Dyke 14 guilty of aggravated battery with a firearm. 15 pertains to the first shot. 16 This pertains to the second shot. This We the 17 jury find the defendant Jason Van Dyke not guilty of 18 aggravated battery with a firearm. 19 This pertains to the second shot. We the 20 jury find the defendant Jason Van Dyke, guilty of 21 aggravated battery with a firearm. 22 This pertains to the third shot. We the jury 23 find the defendant Jason Van Dyke, not guilty of 24 aggravated battery with a firearm. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 100 SR133 124535 1 Again this pertains to the third shot. We 2 the jury find the defendant Jason Van Dyke, guilty of 3 aggravated battery with a firearm. 4 This pertains to the fourth shot. We the 5 jury find the defendant Jason Van Dyke, not guilty of 6 aggravated battery with a firearm. 7 This is the fourth shot also. We the jury 8 find the defendant Jason Van Dyke, guilty of aggravated 9 battery with a firearm. 10 This pertains to the fifth shot. We the jury 11 find the defendant Jason Van Dyke, not guilty of 12 aggravated battery with a firearm. 13 Again the fifth shot, we the jury find the 14 defendant Jason Van Dyke, guilty of aggravated battery 15 with a firearm. 16 This pertains to the sixth shot. We the jury 17 find the defendant Jason Van Dyke, not guilty of 18 aggravated battery with a firearm. 19 This pertains to the sixth shot also. 20 jury find the defendant Jason Van Dyke, guilty of 21 aggravated battery with a firearm. 22 This pertains to the seventh shot. We the We the 23 jury find the defendant Jason Van Dyke, not guilty of 24 aggravated battery with a firearm. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 101 SR134 124535 1 This pertains to the seventh shot also. We 2 the jury find the defendant Jason Van Dyke, guilty of 3 aggravated battery with a firearm. 4 This pertains to the eighth shot. We the 5 jury find the defendant Jason Van Dyke, not guilty of 6 aggravated battery with a firearm. 7 This pertains to the eighth shot also. We 8 the jury find the defendant Jason Van Dyke, guilty of 9 aggravated battery with a firearm. 10 This pertains to the ninth shot. We the jury 11 find the defendant Jason Van Dyke, not guilty of 12 aggravated battery with a firearm. 13 Again pertaining to the ninth shot. 14 jury find defendant Jason Van Dyke, guilty of 15 aggravated battery with a firearm. 16 Pertaining to the tenth shot. We the We the jury 17 find defendant Jason Van Dyke, not guilty of aggravated 18 battery with a firearm. 19 Again the tenth shot. We the jury find the 20 defendant Jason Van Dyke, guilty of aggravated battery 21 with a firearm. 22 The 11th shot. We the jury find the 23 defendant Jason Van Dyke, not guilty of aggravated 24 battery with a firearm. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 102 SR135 124535 1 Again pertaining to the 11th shot. We the 2 jury find the defendant Jason Van Dyke, guilty of 3 aggravated battery with a firearm. 4 Pertaining to the 12th shot. We the jury 5 find the defendant Jason Van Dyke, not guilty of 6 aggravated battery with a firearm. 7 Again the 12th shot. We the jury find the 8 defendant Jason Van Dyke, guilty of aggravated battery 9 with a firearm. 10 To the 13th shot. We the jury find the 11 defendant Jason Van Dyke, not guilty of aggravated 12 battery with a firearm. 13 Again the 13th shot. We the jury find the 14 defendant Jason Van Dyke, guilty of aggravated battery 15 with a firearm. 16 As to the 14th shot. We the jury find the 17 defendant Jason Van Dyke, not guilty of aggravated 18 battery with a firearm. 19 Again pertaining to the 14th shot. We the 20 jury find the defendant Jason Van Dyke, guilty of 21 aggravated battery with a firearm. 22 As to the 15th shot. We the jury find the 23 defendant Jason Van Dyke, not guilty of aggravated 24 battery with a firearm. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 103 SR136 124535 Again pertaining to the 15th shot. 1 We the 2 jury find the defendant Jason Van Dyke, guilty of 3 aggravated battery with a firearm. Pertaining to the 16th shot. 4 We the jury 5 find the defendant Jason Van Dyke, not guilty of 6 aggravated battery with a firearm. Again pertaining to the 16th shot. 7 We the 8 jury find the defendant Jason Van Dyke, guilty of 9 aggravated battery with a firearm. Next two jury verdicts are we the jury find 10 11 the defendant Jason Van Dyke, not guilty of official 12 misconduct. 13 Van Dyke, guilty of official misconduct. And we the jury find the defendant Jason Jessica, at this time will you please get the 14 15 juror number 252, 253, 254, 255, 256, take them back to 16 the juryroom to retrieve their personal belongings. 17 18 19 20 21 22 THE COURT: Okay. At this time will you swear our deputies. (Deputies sworn in). THE COURT: Jessica, take our wonderful people back to the juryroom, please. (Whereupon, the following 23 proceedings were held out of the 24 presence of the jury) SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 104 SR137 124535 THE COURT: 1 You are the alternates so you're not 2 being dismissed. 3 discuss this case in case you're called back as a 4 member of the jury. 5 admonish or tell the rest of the jury they have to 6 start deliberations all over again. 7 like you to have a seat right here in the jury box. 8 9 10 11 What I'd like to do, you can't What we will have to do is I will Right now we'd Can I have the attorneys over here one more time. (Discussion had off the record). THE COURT: At this time what I'm going to do. 12 There's an agreement preserving the arguments for 13 exhibits that have been moved into evidence. 14 I want you to both defense and prosecution 15 take a look at those exhibits. 16 other than what you have already made, please give 17 those exhibits to my deputy and then what will happen 18 is we have a computer, will just have the evidentiary 19 materials on there and none other, is that correct? 20 MR. McMAHON: 21 THE COURT: If there's no objection Yes, judge. Jessica will explain to the jury how 22 to use the computer and how to use the display. 23 Is the handgun going back? 24 MR. McMAHON: No, judge. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 105 SR138 124535 THE COURT: 1 If there's no objections to jury 2 instructions, you can give those to Jessica, too, and 3 she will bring them back. At this time would our wonderful people who 4 5 are our alternates, nobody leaves the courtroom right 6 now. 7 can talk to the alternates. 8 9 Take our people over to the other area. MR. WEILER: to the jury. We have one issue. Nobody What's going back You remember the rate of fire videos, the 10 demonstration. 11 demonstrative and should not go back to the jury. 12 defense is taking the position they are real evidence 13 and should go back to the jury. 14 if theirs goes back, obviously we will ask for ours to 15 go back. 16 17 THE COURT: It's State's position those were You confused me. The We need a ruling and First of all rate of fire, that was done by Scott Patterson? 18 MR. WEILER: 19 THE COURT: 20 MR. WEILER: Correct. Who's objecting? There's three videos. It's our 21 objection, State's objection that they should not go 22 back to the jury because they are demonstrative. 23 24 THE COURT: Did you produce them as demonstrative evidence and that was the ruling when they were shown? SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 106 SR139 124535 1 MR. WEILER: 2 THE COURT: 3 MR. WEILER: 4 MR. HERBERT: 5 THE COURT: 6 7 That was our purpose, yes. What does the transcript say? I'd have to look. I know we -No, this is not -- go look at the transcripts. Ladies and gentlemen in the courtroom, you're 8 more than welcome to stay but at this time if you want 9 to leave, you can leave. 10 11 (Short recess taken). THE COURT: Let me see the attorneys, please. 12 have to give one more instruction. 13 back over there. 14 They will take you (Whereupon, the following 15 proceedings were held in the 16 presence of the jury) 17 I THE COURT: Ladies and gentlemen of the jury, I 18 have to read one additional instruction. 19 not read before. That I had It is as follows: 20 THE CLERK: Jason Van Dyke. 21 THE COURT: To sustain the allegation made in 22 connection with the offense of first degree murder, the 23 State must prove the following propositions. 24 during the commission of the offense of first degree SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM That 107 SR140 124535 1 murder, the defendant personally discharged a firearm. 2 A person is considered to have personally discharged a 3 firearm when he while armed with a firearm, knowingly, 4 intentionally fired the firearm causing ammunition 5 projectile to be forcibly expelled from the firearm. 6 If you find from your consideration of all 7 the evidence that the above proposition has been proven 8 beyond a reasonable doubt, then you should sign the 9 verdict form finding the allegation was proven. 10 If you find from your consideration of all 11 the evidence that the above proposition has not been 12 proven beyond a reasonable doubt, then you should sign 13 the verdict form finding the allegation was not proven. 14 15 16 Thank you. Take our wonderful people back to the juryroom. (Whereupon, the following 17 proceedings were held out of the 18 presence of the jury) 19 20 THE COURT: All right. attorneys to come up here. At this time I like the Short recess, please. 21 (Short recess taken) 22 (Whereupon, the following 23 proceedings were held in the 24 presence of the jury) SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 108 SR141 124535 1 THE CLERK: Jason Van Dyke 2 THE COURT: Good morning, ladies and gentlemen. 3 4 Again I have to read a corrected instruction. So let the record reflect that our alternates 5 are here and our members of our jury are here. 6 attorneys are here and Mr. Van Dyke. 7 And the To sustain the allegation made in connection 8 with the offense of first degree murder, the State must 9 prove the following proposition. That during the 10 commission of the offense of first degree murder, the 11 defendant personally discharged a firearm that 12 proximately caused death to another person. 13 A person is considered to have personally 14 discharged a firearm when he while armed with a 15 firearm, knowingly and intentionally fired the firearm, 16 causing the ammunition projectile to be forcefully 17 expelled from the firearm. 18 If you find from your consideration of all 19 the evidence that the above propositions have been 20 proven beyond a reasonable doubt, then you should sign 21 the verdict form finding the allegation was proven. 22 If you find from your consideration of all of 23 the evidence that the above proposition has not been 24 proven beyond a reasonable doubt, then you should sign SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 109 SR142 124535 1 the verdict form finding the allegation was not proven. 2 Thank you. 3 assigned place. Take our wonderful people back to their (Whereupon, the following 4 5 proceedings were held out of the 6 presence of the jury) 7 8 9 10 11 12 13 THE COURT: What about the whether it was demonstrative or not. MS. WENDT: We have a transcript. You did enter it into evidence. MR. WEILER: evidence. I agree, they were entered into They can go back. THE COURT: Quickly look at the instructions. 14 Hearing no objections, we will send them right back 15 with the jury. 16 in recess at this time. 17 So thank you very much. Good. Court's (Whereupon, deliberations began at 18 approximately 1:00 p.m. and a change 19 of court reporters occurred.) 20 21 THE COURT: All right. Court's back in session. please remain seated. 22 THE CLERK: Jason Van Dyke. 23 THE COURT: All right. 24 We have the State here; is that correct? SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 110 SR143 124535 1 STATE OF ILLINOIS 2 COUNTY OF C O O K ) ) ) SS: 3 4 5 6 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT - CRIMINAL DIVISION We, Paul O'Connor and Kristen M. Parrilli, 7 Official Court Reporters for the Circuit Court of 8 Cook County, Illinois, Judicial Circuit of Illinois, 9 do hereby certify that we reported in shorthand the 10 proceedings had on the hearing in the above-entitled 11 cause; that we thereafter caused the foregoing to be 12 transcribed into computer-aided transcription, which 13 we hereby certify to be a true and accurate 14 transcript of the proceedings had before the 15 HONORABLE VINCENT M. GAUGHAN, Judge of said court. 16 17 _____________________________ PAUL O'CONNOR , CSR KRISTEN M. PARRILLI, CSR, RPR CSR No. 084-004723 Official Court Reporter Circuit Court of Cook County County Department Criminal Division 18 19 20 21 22 23 24 Dated this 16th day of October, A.D., 2018. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 126 SR144 124535 1 STATE OF ILLINOIS 2 COUNTY OF C O O K 3 ) ) SS: ) IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT - CRIMINAL DIVISION 4 5 THE PEOPLE OF THE STATE OF ILLINOIS, 6 7 8 9 ) ) ) ) ) No. 17-CR-04286-01 ) ) ) ) ) Plaintiff, v. JASON VAN DYKE, Defendant. 10 11 REPORT OF PROCEEDINGS had at the hearing 12 of the above-entitled cause, before the 13 [!ATTORNEY10], one of the Judges of said Division, 14 on the 5th day of October, 2018. 15 APPEARANCES: 16 17 18 19 20 21 HON. JOSEPH H. McMAHON, State's Attorney of Kane County, Court-Appointed Special Prosecutor, by MR. JOSEPH M. CULLEN, and MS. JODY P. GLEASON, and MS. MARILYN HITE ROSS, and MR. DANIEL H. WEILER, Assistant State's Attorneys, on behalf of the People; 22 23 24 GLORIA M. SCHUELKE, CSR, RPR Official Court Reporter IV 2650 S. California - 4C02 Chicago, Illinois 60608 Illinois CSR License No. 084-001886 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 1 SR145 124535 1 2 APPEARANCES: (Continued) 3 4 5 6 HERBERT LAW FIRM, by MR. DANIEL Q. HERBERT, and MS. TAMMY L. WENDT, and MR. RANDY RUECKERT, on behalf of the Defendant. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 2 SR146 124535 1 (The following proceedings were had 2 in open court out of the presence 3 and hearing of the Jury:) 4 THE COURT: Please, remain seated. 5 Court's back in session. 6 Call the case, please. 7 THE CLERK: Yes, Jason Van Dyke. 8 THE COURT: Okay. All right. 9 10 11 12 Good. Thank you, James. Will the attorneys state their names, please. MR. McMAHON: Good morning, Judge, Joe McMahon for the People of the State of Illinois. 13 MR. HERBERT: 14 THE COURT: Dan Herbert for Jason Van Dyke. All right. At this time, we were 15 supposed to have some indication about a credible 16 threat? 17 MR. HERBERT: 18 THE COURT: 19 Why Mr. Van Dyke had just left this courtroom, without letting anybody know. All right. 20 21 Yes. MR. HERBERT: What's the credible threat? The credible threat is, two of his 22 Daughters experienced threats at school. 23 younger -- 24 THE COURT: His No, no, you don't define the word that SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 3 SR147 124535 1 you define by using the word. 2 What is: 3 MR. HERBERT: You consider a threat? Well, I don't think it's just me 4 that would just consider it, Judge; but his oldest 5 Daughter -- 6 7 THE COURT: All right. 8 9 All right. We'll take a short recess. I'm not asking you. public. MR. HERBERT: 11 THE COURT: No, I don't. Well, then, give me an answer when I 12 ask you for something. 13 MR. HERBERT: 14 THE COURT: 16 17 I'm not asking the Do you want me to take your guy in custody? 10 15 We're doing this, again. I'm trying to. You're not trying to, all right? What was the threat? MR. HERBERT: The threat was kids -- not kids, high school students were walking around the school -- 18 THE COURT: 19 MR. HERBERT: High school students are kids. Okay. High school kids were walking 20 around the school, saying which one is Jason Van Dyke's 21 Daughter, because we are going to get her at school. 22 So, that wasn't enough. 23 THE COURT: 24 MR. HERBERT: So, they -- Who was the witness to this? The school, for one. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 4 SR148 124535 THE COURT: 1 2 So, you're going to bring the building in? Come on. 3 4 MR. HERBERT: 5 mean, I don't know -- 6 7 THE COURT: I You're not making sense the way you're talking like this. 8 9 Judge, this is a real threat. MR. HERBERT: The school thought it was a threat, so they pulled the Daughter into the Police room, 10 because not only did they start saying they're going to 11 attack his Daughter, then they start passing out 12 pictures so that all of these kids could find out who 13 his Daughter was to attack her. So, yeah, I think that's a threat, Judge; and 14 15 he -- 16 THE COURT: 17 MR. HERBERT: Who did they isolate as -I don't know. 18 they've done any investigation. 19 made. 20 I don't know if A police report's been He's scared to death for his kids. THE COURT: What time -- excuse me, what time was 21 this threat made? 22 MR. HERBERT: 23 THE DEFENDANT: 24 THE COURT: What time was it made? Between 1:00 and 1:30. And what time did you leave the SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 5 SR149 124535 1 2 3 building here? Where's -- I want people out here, unless they're on vacation, all right? 4 THE DEFENDANT: 5 THE COURT: 6 7 8 9 10 Did you know about this threat when you left the building? THE DEFENDANT: THE COURT: Your Dad was driving you away from the building, is that correct? THE DEFENDANT: 12 THE COURT: 14 15 16 17 18 19 20 do with you leaving the building? Who are you leaving the building with? THE DEFENDANT: I -- I'm trying to explain, sir. My Dad received a Voice Mail from the school, on a phone call -THE COURT: Listen to me, I'm asking you what time you left the building? I don't want -THE DEFENDANT: 22 THE COURT: 24 No, no, sir. Well, then, what does your Dad got to 21 23 As soon as my Dad got through his car, he notified me, because he's the one -- 11 13 It was around 1:30, 1:45. Between 1:30 and 1:45, sir. And what time did you get this notification of this threat? THE DEFENDANT: SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM Immediately. 6 SR150 124535 1 THE COURT: 2 a look at the clock. Where on the clock does it say immediately? 3 THE DEFENDANT: 4 5 THE COURT: right. Stop, yeah, take a breath, you're That's good. 8 9 All right. And you didn't note -- did you notify Mr. Herbert? 10 THE DEFENDANT: 11 THE COURT: 12 It was right at the same time I was leaving the building, sir. 6 7 Look, show me -- turn around and take I -- no, I did not, sir. All right. All right. This is a very serious case, all right, as you know. All right. 13 Certainly, these things, you 14 know, have to be addressed; but you don't do this by 15 yourself, all right. 16 So, this time, I'm going to let it go. 17 All right. 18 the Jury? MR. McMAHON: 19 20 21 22 23 24 Do you have the transcript for I do, Judge. I have five copies of -THE COURT: Who's going to be handing -- where's -- all right. Now, where is Amy? THE DEPUTY: She's in there with them right now. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 7 SR151 124535 1 THE COURT: All right. 2 3 Okay. MR. HERBERT: 5 THE COURT: 6 MR. HERBERT: 7 THE COURT: 9 10 Then, Mr. Herbert, you have seen the transcripts? 4 8 Come on up here, please. Yes. And they're good to go? Yes. And this is the transcripts from Officer Walsh? MR. McMAHON: THE COURT: Yes, sir. All right. 11 thing, all right. 12 again, all right. Now, here's the next I'm not going to go through this, So, I'm going to order you to stay in this 13 14 building, Mr. Herbert, so that you can consult with 15 your client. If there's any further questions, you're the 16 17 lead attorney. 18 can answer any questions of the Jury, all right? 19 MR. HERBERT: 22 So, we That's fine, Judge. I just have to go to my car to get some 20 21 You're the person in charge. stuff. THE COURT: Oh, absolutely; and if you want, 23 there's room back there and the table back there, if 24 you have to do work that you feel you can't do out SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 8 SR152 124535 1 here. All right. 2 3 until the Jury comes back. (Brief recess.) 4 5 6 THE COURT: 9 10 All right. Court's back in session. Please, remain seated. Where's the State? 7 8 So, we're in recess at this time, THE DEPUTY: She just called them. They're on their way. THE COURT: Okay. From now on, when we get a note 11 from the Jury, all right, I want you to start calling 12 the lawyers immediately, okay? 13 Tell Amy that, too, please. 14 And tell Amy I need the other note. 15 Do you have the other note? 16 THE DEPUTY: 17 THE COURT: 18 THE DEPUTY: 19 THE COURT: 20 I'm sorry, Judge. And we have the laptop here? Yes. Okay. Good. As soon as the attorneys get here, we will discuss that. 21 THE DEPUTY: 22 THE COURT: 23 THE DEPUTY: 24 THE COURT: Okay. Amy, hang out here, too, please. I will. All right. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM Call the case, please. 9 SR153 124535 1 THE CLERK: Jason Van Dyke. 2 THE COURT: All right. 3 4 Can I have the attorneys approach, please. All right. First off, we have a request from 5 one of the alternates. 6 laptop has been sequestered, also, away from her. 7 She wants to be able -- her She wants to know if she can use her laptop 8 to send out an office notification, and that's the 9 only -- what she's going to do. 10 MR. HERBERT: That's fine with me. 11 MR. McMAHON: That's fine. 12 THE COURT: All right. Good. 13 Okay. Thank you. 14 Now, we have another note from the Jury. 15 You know, here's the thing, why don't we make 16 a couple of copies. 17 so they can have some. 18 19 20 Let me give that to the attorneys, It's a -- either or type thing. So, it's not too complicated, even though it looks that way. What I'll do is, I'll read it; and then I'll 21 give you both copies, and then consult with your 22 client, and then get together, and we'll see what we're 23 going to do with it. 24 See if it's legible. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM If it isn't, then, I'll 10 SR154 124535 1 have Toni make a copy on her printer. 2 All right. 3 This is on considering of the 16 counts of 4 Here's what the Jury requests: aggravated battery with a firearm. Are we to consider counts as, A, how the 5 6 shots are numbered on the Medical Examiner's chart; or, 7 B, the simple number of shots fired; and it's by the 8 Foreperson of the Jury. All right. 9 The name of the Foreperson is on 10 there. 11 respect for your integrity -- just not to disclose the 12 name of the Foreperson. 13 14 So, I'm ordering you -- which I have the utmost All right. you want to consult with your client? 15 MR. McMAHON: 16 THE COURT: 17 Yes, Judge, I do. And, Joe? All right. 18 MR. HERBERT: 19 THE COURT: 20 recess at this time. 21 22 23 24 So, do you want to consider -- Do you want to consult -- Yes, I will. All right. There will be a short (Brief recess.) THE COURT: All right. Court's back in session. Please, remain seated. Do we have a full complement? SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 11 SR155 124535 1 All right. Call everybody in from the hall. 2 Thank you very much. 3 All right. Call the case, please. 4 THE CLERK: Jason Van Dyke. 5 THE COURT: All right. 6 suggestion? Again, Mr. Van Dyke is present here with his 7 8 9 Mr. McMahon, what's your attorneys. MR. HERBERT: 10 THE COURT: 11 MR. McMAHON: Yes. Thank you. Judge, my suggestion is that the 12 answer is, B, simple number of shots fired. 13 based on the language in the Indictment. 14 consistent with the testimony of the -- of the Medical 15 Examiner pathologist, really from all the witnesses. 16 That's That's That's the only -- the answer that is 17 consistent with both the Indictment and the testimony 18 that has come in. 19 THE COURT: 20 MR. HERBERT: 21 22 Mr. Herbert? I would object to clarifying this question for them. We have already argued about the confusing 23 nature of the 16 counts of aggravated battery. 24 if -- if the Jury's having problems with it, welcome to SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM So, 12 SR156 124535 1 2 our world; but I don't think it's fair to -- to -THE COURT: And to be consistent, you also wanted 3 a Jury instruction that if they found Mr. Van Dyke not 4 guilty on one of the aggravated battery counts, then, 5 they should find him not guilty -- then, I should 6 direct that they find him not guilty on all the others. So, to be consistent, you don't want to make 7 8 9 10 11 any reply? MR. HERBERT: Correct, that Jury instruction was denied. THE COURT: Yeah, right. All right. 12 This is a -- not a matter of law; 13 but it's almost like a hybrid; and just in fairness to 14 the Jury, the -- I think both pathologists testified 15 that they could not determine which bullet entered or 16 the order in which the bullets entered into Laquan 17 McDonald. So, this is not directing them one way or 18 19 20 another. It's just the simple number of shots fired. So, I'm going to say, consider answer B, over 21 the defense's objection, to be consistent with the 22 previous arguments. 23 MR. HERBERT: 24 THE COURT: Okay. What I'll do is, prepare the note back SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 13 SR157 124535 1 to the Jury; and then I'll read it to you, okay? MR. McMAHON: 2 3 the Juror's instruction back? THE COURT: 4 6 MR. HERBERT: 7 THE COURT: MR. HERBERT: THE COURT: MR. HERBERT: THE COURT: 15 I'll give it to you later, you know, No, that's fine, Judge. Well, no, Dan, I just want to read my -- 17 MR. HERBERT: 18 THE COURT: Oh, I'm sorry. -- direction to them. All right. 19 We have the attorneys present. Mr. Van Dyke is present with his attorneys. Here's what I'm going to -- over defense's 21 22 Judge, do you mind if I take a Judge, do you need us any more? 14 20 That way for security after they come back, certainly. 13 16 Thank you. picture of it? 11 12 Yes. purposes. 9 10 Oh, yeah. Dan, could I get the question back, please. 5 8 Judge, do you want the photocopy of objection. 23 Dear Jury, consider Paragraph B, period. 24 Please, continue to deliberate. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 14 SR158 124535 1 Thank you. 2 All right. 3 Thank you very much. 4 All right. 7 THE COURT: 10 All right. THE DEPUTY: THE COURT: 11 12 I'm right here. All right. All right. Court's in session. Court's back in session. 16 THE COURT: All rise. Thank you. All right. At this time, Toni, call the case, please. 19 THE CLERK: Jason Van Dyke. 20 THE COURT: All right. 21 Go ahead. THE DEPUTY: 18 Where are our people? yourself in trouble. 15 17 Court's back in session. You start talking, you're going to find 13 14 All right. Please, remain seated. 8 9 We're in recess at this time. (Brief recess.) 5 6 John, could you take this back. where they're at. The attorneys can stay I'm just making an announcement. 22 The Jury has reached a verdict, all right. 23 I'm not going to announce the verdict until, 24 approximately, 1:45 p.m. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 15 SR159 124535 Jessica, what time did the Jury come back? 1 2 THE DEPUTY: 3 THE COURT: 4 That's good. That's for the media. All right. Thank you very much. And one more thing, excuse me, before you 7 8 All right. So, everybody back in here for the verdict. 5 6 At, approximately, 12:32, Judge. leave, all right? I am going to have security up here. 9 These 10 wonderful people -- and I'm going to announce it, 11 again -- took all this time out of their day-to-day 12 activities, meaning our Jury. They're -- you know, they fulfilled their job 13 14 as a citizen of Cook County; and there's a lot of 15 things that have gone on in their life. 16 anybody to second-guess them. 17 I don't want There aren't going to be no -- nobody 18 yelling. 19 which way you like the verdict, nobody will be allowed 20 to make any outbursts or anything else like that. 21 Nobody -- no matter which side you're on, or At 1:45 a.m. -- p.m., we will have enough 22 Sheriffs in this courtroom. 23 guarantee you, I'm going to arrest you, all right. 24 If you do act up, I So -- but I do want you to stay. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM That's the 16 SR160 124535 1 primary thing, and I want you to look into your hearts 2 and control your emotion, and I know this isn't going 3 to be easy for either side. 4 So, please, do that. 5 Thank you. 6 7 8 (Brief recess.) THE COURT: 11 All right. Court's back in session. Please, remain seated. Thank you very much for standing up, all 9 10 See you all at 1:45 p.m. right. I want our three alternates to come on up 12 here, please; and then, Ted -- all right. 13 case, please. Call the 14 THE CLERK: Jason Van Dyke. 15 THE COURT: I just don't want you on video, okay. 16 17 18 So, they're going to video the audience. I really appreciate everything you've done. You're fantastic. You're my Brother and Sister Judges. 19 Why don't you have a seat. 20 Thank you. 21 All right. 22 23 24 Ladies and Gentlemen, our Jury has reached a verdict. You have seen the TV camera taking the images in the outer part of the courtroom, and that was at my SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 17 SR161 124535 1 direction. If there is any outward bursts or anything 2 3 else like this, any disruption of this Court, as you 4 can see, my Sheriffs are around the inner part of the 5 courtroom. 6 into custody. The reason -- and let me give you the reasons 7 8 You will be arrested immediately and taken for this, too. We have these wonderful people, and our 9 10 alternates here, who have taken the time out of their 11 life; and we all know just, when you come back from a 12 small vacation or some kind of work trip, how we have 13 to catch up; and they have to catch up; and they've 14 done things -- and this is not the easiest decisions to 15 make in the world. So, I don't want anybody second-guessing 16 17 them. 18 be proud of their accomplishment as citizens of Cook 19 County. 20 They've done an outstanding job. We all have to So, again, what I want you to do is, look 21 into your heart; and if you can withstand the verdict, 22 please, stay; but if you think you can't, I want you to 23 leave, because there will be zero tolerance at this 24 time, because I'm not going to have these people SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 18 SR162 124535 1 disrespected; and thank you, ma'am, I appreciate that. 2 All right. And anybody else? 3 All right. I know this isn't going to be 4 easy. So, I'm, you know, asking you, again, to look 5 into your heart. 6 this, then, please, leave; and we'll let you back in 7 after the verdict. If you think you're not capable of 8 All right. 9 And I want to -- all right. 10 Are we all ready? What I want to do, too, is, we've had members 11 from the media, both broadcast and press journalists. 12 They've just been fantastic. 13 outstanding. 14 Everybody's been really The reporting on this has been very 15 important, because we need transparency, and especially 16 in a case like this; and I really want to compliment 17 the media chairs. 18 been very cooperative. 19 They've just been great. They've We had a great session the other day, with 20 the two Jurors -- the alternate Jurors that were 21 excused and were allowed, you know, to have the 22 interview with them. 23 24 I'm going to see if we can get another interview going with the rest of the Jurors and with SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 19 SR163 124535 1 our wonderful alternates here. So, again, thank you very much. 2 I appreciate 3 your interest; and again, thank you for the press. 4 You've been outstanding. All right. 5 6 THE DEPUTY: Bring the Jury out, please. All rise for the Jury. 7 (The following proceedings were had 8 in open court in the presence and 9 hearing of the Jury:) 10 THE COURT: We good? 11 Okay. 12 Will everybody, please, be seated. 13 Will the Foreperson, please, rise. 14 Has the Jury reached verdicts? Thank you. 15 THE FOREPERSON: 16 THE COURT: 17 18 Thank you very much. Could you give Jessica the Jury verdict forms and just have a seat. I appreciate that. I like the Jury, you're wearing, like, 19 20 Yes, we have. necklaces. Fantastic. That's good. Ladies and Gentlemen, let me explain certain 21 22 things, so you'll understand the verdicts a little bit 23 better. 24 All right. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM The charges in this case were 20 SR164 124535 1 first degree murder, 16 counts of aggravated battery, 2 one count of official misconduct. There also -- the defense had asked for the 3 4 instructions and the Jury verdict form on second degree 5 murder, all right. 6 Let me explain the process, here. Before anybody can get the second degree 7 murder, the State must prove each and every elements of 8 first degree murder. 9 going directly to second degree murder. 10 There's no bypassing that and As pointed out by one of our wonderful 11 Professors, Professor Kling who's in the audience, 12 during his lectures, second degree murder is a 13 combination of first degree murder, plus a mitigating 14 factor. 15 offense, because it demands another set of proof, which 16 would be the proof by the defense or the Defendant 17 going forward by a preponderance of the evidence. 18 19 20 21 22 23 24 It is not really technically a lesser included So, with this understanding, will you, please, read the verdicts. THE CLERK: Yes. We, the Jury, find the Defendant, Jason Van Dyke, guilty of second degree murder. We, the Jury, find the Defendant, Jason Van Dyke, guilty of aggravated battery with a firearm, 1st SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 21 SR165 124535 1 shot. We, the Jury, find the Defendant, Jason Van 2 3 Dyke, guilty of aggravated battery with a firearm, 2nd 4 shot. We, the Jury, find the Defendant, Jason Van 5 6 Dyke, guilty of aggravated battery with a firearm, 3rd 7 shot. 8 9 10 We, the Jury, find the Defendant, Jason Van Dyke, guilty of aggravated battery with a firearm, 4th shot. 11 We, the Jury, find the Defendant, Jason Van 12 Dyke, guilty of aggravated battery with a firearm, 5th 13 shot. We, the Jury, find the Defendant, Jason Van 14 15 Dyke, guilty of aggravated battery with a firearm, 6th 16 shot. 17 We, the Jury, find the Defendant, Jason Van 18 Dyke, guilty of aggravated battery with a firearm, 7th 19 shot. We, the Jury, find the Defendant, Jason Van 20 21 Dyke, guilty of aggravated battery with a firearm, 8th 22 shot. 23 24 We, the Jury, find the Defendant, Jason Van Dyke, guilty of aggravated battery with a firearm, 9th SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 22 SR166 124535 1 shot. We, the Jury, find the Defendant, Jason Van 2 3 Dyke, guilty of aggravated battery with a firearm, 10th 4 shot. We, the Jury, find the Defendant, Jason Van 5 6 Dyke, guilty of aggravated battery with a firearm, 11th 7 shot. 8 9 10 We, the Jury, find the Defendant, Jason Van Dyke, guilty of aggravated battery with a firearm, 12th shot. 11 We, the Jury, find the Defendant, Jason Van 12 Dyke, guilty of a aggravated battery with a firearm, 13 13th shot. We, the Jury, find the Defendant, Jason Van 14 15 Dyke, guilty of aggravated battery with a firearm, 14th 16 shot. 17 We, the Jury, find the Defendant, Jason Van 18 Dyke, guilty of aggravated battery with a firearm, 15th 19 shot. We, the Jury, find the Defendant, Jason Van 20 21 Dyke, guilty of aggravated battery with a firearm, 16th 22 shot. 23 24 We, the Jury, find the Defendant, Jason Van Dyke, not guilty of official misconduct. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 23 SR167 124535 1 12 signatures. 2 THE COURT: 3 MR. HERBERT: 4 THE COURT: 5 6 7 8 9 10 11 At this time, Mr. Herbert? Judge, we will not poll the Jury. All right. Can I have the attorneys over here for a second, please. (Discussion held off the record.) THE COURT: Thank you. Mr. Herbert? MR. HERBERT: Your Honor, at this time, we would ask to poll the Jury. THE COURT: Ladies and Gentlemen, I know this is, 12 you know, a new experience for you; but when anybody 13 has been convicted of a criminal offense in the State 14 of Illinois by a Jury Trial, the person that has been 15 convicted, has an absolute right to poll the Jury. 16 This was a remedy decided by our Illinois 17 Supreme Court; and the purpose of this is, in case 18 somebody was forced to sign a Jury verdict form in the 19 Jury room; and this gave that individual the -- you 20 know, the opportunity to be in the public, and say, no, 21 this wasn't my verdict form. 22 So, it's an absolute right. 23 So, the question will be: 24 Was this then and is this now your verdict? SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 24 SR168 124535 1 2 3 4 5 6 Meaning, was that then, in the Jury room; and is this now your verdict? So, at this time, Toni? THE CLERK: Yes. Juror 240, were those then and are these now your verdict? 7 JUROR 240: Yes. 8 THE CLERK: Juror 241, were those then and are 9 these now your verdict? 10 JUROR 241: Yes. 11 THE CLERK: Juror 242, were these then and are 12 these now your verdict? 13 JUROR 242: Yes. 14 THE CLERK: Juror 243, were those then and are 15 these now your verdict? 16 JUROR 243: Yes. 17 THE CLERK: Juror 244, were those then and are 18 these now your verdict? 19 JUROR 244: Yes. 20 THE CLERK: Juror 245, were those then and are 21 these now your verdict? 22 JUROR 245: Yes. 23 THE COURT: Juror 246, were those then and are 24 these now your verdict? SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 25 SR169 124535 1 JUROR 246: Yes. 2 THE CLERK: Juror 247, were those then and are 3 these now your verdict? 4 JUROR 247: Yes. 5 THE COURT: Juror 248, were these then and are 6 these now your verdict? 7 JUROR 248: Yes. 8 THE COURT: Juror 249, were those then and are 9 these now your verdict? 10 JUROR 249: Yes. 11 THE CLERK: Juror 250, were those then and are 12 these now your verdict? 13 JUROR 250: Yes. 14 THE COURT: And Juror 251, were those then and are 15 these now your verdict? 16 JUROR 251: Yes. 17 THE CLERK: Thank you. 18 THE COURT: Okay. John and Jessica, would you 19 take our wonderful people of the Jury, and our three 20 wonderful alternates, back to the Jury room, please. 21 THE DEPUTY: All rise for the Jury. 22 (The following proceedings were had 23 in open court out of the presence 24 and hearing of the Jury:) SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 26 SR170 124535 1 2 3 THE COURT: Ladies and Gentlemen, will you, please, be seated. At this time, I would like to express my 4 appreciation for everybody who participated in this 5 Trial, and also for the public that are here today. 6 I know -- you know, depending on what side 7 that you really favored, it wasn't easy -- excuse me -- 8 for this verdict to come in, and I appreciate what -- 9 your restraint that you used to today. 10 11 It makes me very proud to be a citizen of the City of Chicago and also the County of Cook. 12 So, thank you. 13 At this time, State? 14 15 MR. McMAHON: would move to revoke Defendant Jason Van Dyke's bond. 16 THE COURT: 17 MR. HERBERT: 18 19 Your Honor, at this time, the State Mr. Herbert? Judge, we would ask that the -- the Motion for the State to be denied. We would ask that, in light of the fact that 20 my client is not found guilty of first degree murder, 21 we would ask for a bond review. 22 23 24 In the alternative, we would ask if we could come back next week for a bond review. THE COURT: Mr. McMahon? SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 27 SR171 124535 MR. McMAHON: 1 Judge, I would object to that. The 2 Defendant's been convicted of 16 counts of aggravated 3 battery with a firearm. Those are Class X felonies. 4 The mandatory 5 minimum sentence is 6 years in the Illinois Department 6 of Corrections, with a maximum of 30 years on each 7 count. 8 9 10 11 12 13 14 15 Given that he now stands before this Court as a convicted felon, we would ask that you revoke his bond. THE COURT: All right. All right. I'm going to order a Presentence Investigation. All right. Order of Court, October 31st, 2018, all right. 16 All right. 17 I appreciate that. 18 Court's in recess. 19 20 21 Bail will be revoked. THE DEPUTY: Thank you very much. All rise. (Which were all the proceedings had in the above-entitled cause.) 22 23 24 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 28 SR172 124535 1 STATE OF ILLINOIS 2 COUNTY OF C O O K ) ) ) 3 4 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT - CRIMINAL DIVISION 5 I, GLORIA M. SCHUELKE, CSR, RPR, Official 6 Court Reporter of the Circuit Court of Cook County, 7 County Department, Criminal Division, do hereby 8 certify that I reported in shorthand the proceedings 9 had at the hearing in the aforementioned cause; that 10 I thereafter caused the foregoing to be transcribed 11 into typewriting, which I hereby certify to be a 12 true and accurate transcript taken to the best of my 13 ability of the Report of Proceedings had before the 14 [!ATTORNEY10], Judge of said court. 15 16 17 18 19 20 21 22 ___________________________________ Official Court Reporter Illinois CSR License No. 084-001886 23 24 Dated this 9th of October, 2018. SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 29 SR173 1 24535 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOI CRIMINAL DIVISION ,3 this, 555?? PEOPLE OF THE STATE OF ILLINOIS, ?is? :55 7 9 Plaintiff, 25 jr?fi? v. Gen \7No. 4286 5?3 5722? JASON VAN DYKE, Defendant, NOTICE OF FILING PLEASE TAKE NOTICE that the undersigned has on January 14, 2019, caused to be ?led in the Of?ce of the Circuit Court of Cook County, Illinois, a copy of the above and foregoing People?s Sentencing Memorandum of Law in the above-captioned case and hereby serve you with copy of PROOF OF SERVICE The undersigned hereby certi?es that he served a true and correct copy of the above and foregoing People?s Sentencing Memorandum of Law to the individual listed below: Attorney Daniel Q. Herbert The Law Of?ces of Daniel Q. Herbert 206 S. Jefferson, Suite 100 Chicago, IL 60661 dan.herbert@danherbertlaw.com by hand on January 14, 2019. MA Kane County State?s Attorney?s Of?ce . 37W777 Route 38, Suite 300 - St. Charles, IL 60175 SR174 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 {fl-5,511} 267THE CIRCUIT COURT OF COOK ht gig}, COUNTY DEPARTMENT-CRIMINAL . 9: 2 .. I Vii-C'- . .. \x PEOPLE OF THE STATE OF ILLINOIS, if 3.2, Respondent vs. CASE NO. 17 CR 4286 JASON VAN DYKE, Petitioner SENTENCIN MEMORANDUM OF LAW The following memorandum of law addresses the goveming relevant statutes and case law which potentially apply to this case: I 1. Defendant was charged with ?rst degree murder, of?cial misconduct, and sixteen separate counts of aggravated battery with a ?rearm. The aggravated battery with a ?rearm charges apportioned each act of ?ring defendant?s weapon as a separate crime based on the order in which it was ?red ?rst shot, second shot, third shot, etc.) 2. The jury convicted defendant of second degree murder and all sixteen counts of aggravated battery with a ?rearm. Under 720 ILCS 5/9-2, second degree murder is a Class 1 felony, with a sentencing range of not less than 4 years and not more than 20 years. 730 ILCS Second degree murder is a potentially probationable offense. A sentence for second degree murder is eligible for day-for?day good conduct credit. 730 ILCS 4. Under 720 ILCS 5/ 12-3.05 aggravated battery with a ?rearm is a Class felony, subject to a sentencing range of 6-30 years. 730 ILCS Aggravated battery with a ?rearm is non-probationable. 730 ILCS A sentence for aggravated 1 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 battery with a ?rearm is subject to truth-in-sentencing which requires that defendant receive no more than 4.5 days of good conduct credit for each month of his or her sentence of imprisonment. 730 ILCS 5/3-6-3 An aggravated battery with a ?rearm conviction may not be reduced to less than 85% of the sentence imposed thereon. 730 ILCS 5/3-6- N4?m- 5. The People maintain that the one-act one-crime doctrine does not apply to this case, and as such, a sentence must be imposed on each of the sixteen aggravated battery with a ?rearm verdicts reached by the jury. 6. The one-act one-crime doctrine disallows multiple convictions to be carved from a single physical act. People v. King, 66 Ill.2d 551, 566 (1977). In King, the Court de?ned an ?Act? as: ?any overt or outward manifestation which will Support a different offense.? Id. A person can be guilty of multiple offenses even when a common act is part of both offenses. People v. Rodriguez, 169 Ill.2d 183, 188 (1996). When. the one?act, one-crime doctrine applies, the less serious offense must be vacated. People v. Lee, 213 Ill.2d 218, 226 (2004). 7. In People v. Crespo, 203 111.2d 335, (2001), the Illinois Supreme Court articulated the test for determining when the one act one crime doctrine applies. Crespo was convicted of the ?rst degree murder of the mother of his child, and armed violence, as well as two counts of aggravated battery based on stabbing the victim?s daughter three times. He?was sentenced to 75 years for the murder, 30 years for the armed violence, and'S years for the aggravated battery, after ?nding that the two counts of aggravated battery merged. All sentences ran concurrently. Crespo, 203 111.2d at 336-338. On appeal, defendant claimed that his aggravated battery conviction could not stand because it was based on the same single act as the armed violence charge. Id. at 337. While SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 the Court found that each stab wound could, in theory, support a separate offense, that they did not, because ?this is not the theory under which the State charged defendant, nor does it conform to the way the State presented and argued the case to the jury.? 203 Ill.2d at 342. The failure of the indictment to apportion the offenses according to the various stab wounds, and the prosecutor?s portrayal of defendant?s conduct as a single attack disallowed the two aggravated battery convictions to stand. Id. at 345. The Court held: Here, the State speci?cally argued to the jury that the three stab wounds constituted great bodily harm. The State never argued that only one of the stab wounds would be suf?cient to sustain this charge. Again, it must be pointed out that the State could have, under our case law, charged the crime that way, and could have argued the case to the jury that way. The State chose not to do so, and this court cannot allow the State to change its theory of the case on appeal. It is possible that, although the jury found that all three stab wounds together constituted great bodily harm, the jury would not have considered any one of the stab wounds individually to constitute great bodily harm. This court will not I invade the province of the jury and decide this question of fact. People v. Crespo, 203 Ill. 2d at 344. 8. Thereafter, in People v. Bishop, 218 Ill.2d 232, 246 (2006), the Illinois Supreme Court reiterated that multiple convictions are proper where the State consistently treats the defendant?s acts as separate in the indictment and at trial. See also, Guide to Sentencing and Bond Hearings in Illinois, O?Brien, Darren (2018 Ed), p. 31: Ch. IX Merger (The One Act One Crime Rule) (?Prosecutorial intent, as it is re?ected in the charging document, is a signi?cant factor in determining whether the defendant?s conduct constituted separate acts capable of supporting multiple convictions?) SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 9. Applying the foregoing authority to the facts of this case, defendant must be sentenced on all sixteen counts of aggravated battery with a ?rearm where: 1) the indictments charged defendant with ?ring sixteen separate shots, (2) each charge was supported with evidence pertaining to each individual shot and the resulting damage and blood loss caused by it (See, Exhibit A, attached), (3) the People consistently maintained in opening statement and closing arguments that defendant committed sixteen separate acts of aggravated battery with a ?rearm, all of which contributed to the death of Laquan McDonald, and, (4) the jury was provided and signed 16 separate verdict forms for each separate shot ?red. 10. Having established that defendant must be sentenced on all sixteen charges of aggravated battery with a ?rearm, the question arises as to whether a sentence should be imposed on the second degree murder charge. Resolution of such question requires consideration of the Illinois Supreme Court?s holding in People v. Lee, 213 Ill.2d 218 (2004). In Lee, defendant was convicted of second degree murder and one count of aggravated battery with a ?rearm Where he shot and killed one victim (Wile), and one count of aggravated battery with a ?rearm where he shot the second victim (Willis). The trial court sentenced defendant to 20 years for the second degree murder and 15 year's for the aggravated battery with a ?rearm of Wile. 213 Ill.2d at 221. Defendant received a consecutive 18 year sentence for the aggravated battery charge of Willis. 11. On appeal, the Feurth District Appellate Court found that the one-aet, one?crime doctrine barred convictions for both second degree murder and aggravated battery with a ?rearm. People Lee I, 311 Ill. App. 3d 363 (4th Dist. 2000). Initially, the court found that defendant?s convictions were based on separate acts where defendant shot the victim three . times. 311 Ill. App. 3d at 369-3 70. The Court then determined that where multiple SR178 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 convictions are based on multiple offenses, and some-offenses are included offenses, that only the conviction and sentence for the offense With the highest sentence may stand because the rule against multiple convictions should inure tothe State and not provide a windfall for defendants. Id. at 373 12. Defendant appealed and the Supreme Court issued a supervisory opinion directing the appellate court to vacate its judgment and reconsider. In its second published decision, the appellate court, relying on People v. Crespo, indicated that-the State?s failure to apportion the crimes among the three gunshots ?red at Wile required that either the second degree murder conviction or aggravated battery with a ?rearm conviction be vacated. People v. Lee 11, 343 Ill. App. 3d 431, 439 (4th Dist. 2003) The court vacated defendant?s aggravated battery with a ?rearm conviction, again holding that where multiple convictions cannot stand under one- act, one-crime doctrine, that only the conviction and sentence for the offense with the highest sentence may stand because the rule against multiple convictions should inure to the State?s bene?t and not defendant?s. Id. at 441. 13. The Illinois Supreme Court granted defendant leave to appeal. After noting that the State had conceded that the one?act one-crime doctrine applied to require that the less serious offense be vacated, the Court held that aggravated battery with a ?rearm is a more serious offense than second degree murder based on the legislative classi?cation assigned each offense. Id. at 229-230. As such, the Court remanded the case to the appellate court to vacate the second degree murder conviction in favor of the aggravated battery with a ?rearm conviction. Id. at 230. 14. Application of Lee to this case divests this court of the ability to sentence defendant on the second degree murder verdict, to the exclusion of the aggravated battery with a ?rearm verdicts SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 because second degree murder is, as a matter of law, the lesser offense. See also, Guide to Sentencing and Bond Hearings in Illinois, O?Brien, Darren (2018 p. 31: Ch. Di Merger (The One Act One Crime Rule) (citing People v. Lee as ?holding that Aggravated Battery [Firearm is a higher class than 2nd Degree Murder involving the same victim and, therefore, only a sentence on the Aggravated Battery/Firearm is appropriate). 15. Consideration of whether defendant?s aggravated battery convictions require the imposition of consecutive sentences properly begins with 730 ILCS found constitutional in People v. Wagener, 196 111.2d 269, 285-86 (2001). In pertinent part, it provides: Consecutive terms; mandatory. The court shall impose consecutive sentences in each of the following circumstances: 1) One of the offenses for which the defendant was conviCted was ?rst degree murder or a Class or Class 1 felony and the defendant in?icted severe bodily injury. 16. The offenses described in 1) are referred to as ?triggering offenses? and are: ?icrimes of a singular nature, involving particularly serious invasions of the person.? People v. Curry, 178 Ill.2d 509, 538 (1997). In Curry, the Illinois Supreme Court interpreted the consecutive sentencing statute as mandating that consecutive sentences be served prior to, and independent of, any sentences imposed for non-triggering offenses. Id. at 539. 17. Here, because the People apportioned the separate acts underlying each and every charge, and where aggravated battery with a ?rearm is a class felony, there are 16 potential triggering offenses. The con?uence of the mandatory consecutive sentence statute and the rule of law established in People v. Lee allows for the anomalous possibility of a minimum prison sentence of 96 years in the Illinois Department of Corrections (six years multiplied by sixteen counts of aggravated battery with a ?rearm). The People acknowledge both that Article 1, 11 of the Illinois Constitution provides that ?All penalties shall be determined SR18O SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 both according to the seriousness of the offense and with the objective or restoring the offender to useful citizenship? and that 720 ILCS 5/ 1-2(c) provides that the Criminal Code be construed to prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders. As such, the People maintain that prudence dictates that this Court also impose a sentence on the second degree murder verdict in this case to prevent the needless waste of judicial resources should the Supreme Court decide to revisit their previous holdings in-Lee or Crespo. 18. For a potential triggering offense to result in the imposition of a consecutive sentence, however, the trial court must make an explicit ?nding of severe bodily injury. People v. Alvarez, 2016 IL App (2d) 140364, 1124. The First District Appellate Court has held that ?severe bodily injury? is not synonymous with ?great bodily harm.? People v. Williams, 335 Ill. App. 3d 596, 599-600 (1?St Dist. 2002) (?Severe bodily injury? requires a degree of harm to the victim that is something more than that required to create the aggravated battery offense?) The trial court is in the best position to evaluate all of the relevant factors and determine whether the injury to the victim constitutes ?severe bodily injury.? People v. Austin, 328 Ill. App. 3d 798, 808-09 (2002). A trial court?s ?nding of fact with respect to this issue is to be given great deference. People v. Deleon, 227 Ill.2d 322, 332 (2008). 19. It must also be noted, however, that extant precedent holds that the death of the victim of a triggering offense may constitute the ?severe bodily injury? which requires the imposition of a consecutive sentence. People v. Thompson, 331 Ill. App. 3d 948, 956-57 (1St Dist. 2002); People v. Carney, 327 Ill. App. 3d 998, 1002 (1St Dist. 4th Div. 2002); People v. Causey, 341 SR181 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 111. App. 3d 759, 771-772 (1St Dist. 6th Div. 2003). See also, Guide to Sentencing and Bond Hearings in Illinois, O?Brien, Darren (2018 p. 31: Ch. VII Consecutive Sentencing, 1[ 1(a) ?Death? quali?es as ?severe bodily injury? suf?cient to trigger consecutive sentencing.? 20. Putting aside the extensive evidence presented by the People regarding each individual wound in?icted by defendant, defendant?s own evidence conclusively established that at least two of the shots that defendant ?red were fatal. On this basisalone, a ?nding of ?severe bodily injury? necessarily follows. This wOuld have the effect of making defendant subject to a minimum sentence of 18 years: 6 years for each triggering offense, to be served independent of and in addition to a 6 year minimum sentence on a non-triggering offense, with all offenses to be served at the rate of 85%. 21. Such position ?nds support in People v. Stanford, 2011 IL App (2d) 090420 ?46-47, where the Appellate Court held that the trial court was required to impose consecutive sentences for defendant?s armed violence and attempt murder convictions where multiple gunshots were apportioned as separate acts to support convictions for both charges. The Court held: I The State's reference to defendant's ?ring multiple shots supported its argument that each separate, additional act of ?ring the gun lent credence to the conclusion that defendant had the intent to kill. In other words, the State did not treat the multiple shots as a single act; rather, it treated them as multiple, separate acts showing a single element of attempted murder. We also note that the State extensively questioned Pruneda [the victim] about each of his individual injuries. The trial court found that the ?shooting of Pruneda, Silva, and Diaz arose from a series of closely related acts,? and defendant does not dispute this ?nding. As we observed above, 17 of the 20 counts in the indictment expressly indicated a speci?c injury to a speci?c victim. SR182 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 With respect to Pruneda, defendant committed three separate acts: he shot Pruneda in the face (supporting count I for attempted murder); he shot Pruneda in the left ankle (supporting count for armed violence); .and he shot Pruneda in the right ankle (supporting count XIV for armed violence). The indictment was suf?cient to put defendant on notice that the State was treating defendant's infliction of each gunshot wound as a separate act, and the State's case was consistent with that theory. 22. Additionally, where the evidence adduced at trial established that: (1) defendant ?red sixteen bullets into the body of Laquan McDonald, ?rst when Laquan was upright, and later, after ?reassessing the situation? upon Laquan falling to the ground, (2) each and every shot caused bleeding, and, (3) each and every shot contributed to Laquan?s death which resulted from multiple gunshot wounds, where he, essentially, bled to death, there is ample basis for this Court to make additional ?ndings of ?severe bodily injury.? 23. A sampling of caSes where gunshot wounds were found to cause severe bodily injury to require consecutive sentencing includes: a People v. Deleon, 227 Ill.2d 322, 332-333 (2008) (victim shot through the chest quali?es as severe bodily injury even though victim was able to drive away from the scene, notice an ice cream truck surrounded by children, get himself to a nearby gas station and request help, collect the bullet from his sweater, and wait for the police to arrive.) 0 People v. Johnson, 149 Ill.2d 118 128-129 (1992) (victim shot in the shoulder quali?es even though he walked out of the apartment where the shooting occurred, ?agged down a passing motorist, told the driver there was a robbery and a shooting, and had the motorist drive him to a hospital.) I People v. Williams, 335 Ill. App. 3d 596, 601 (1St Dist. 2002) (gunshot wound to victim?s left arm resulting in emergency surgery and a 19-day stay in the hospital constitutes severe bodily injury, while through-and-through shots to victims? legs for which no SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 immediate medical attention was received required additional inquiry and ?ndings by trial court.) People v. Kelley, 331 Ill. App. 3d 253, 260 (15t Dist. 2002)(victim shot twice in right arm, requiring hospitalization for three days constitutes severe bodily injury for imposition of consecutive sentence.) People v. Austin, 328 Ill. App. 3d 798, 807(1St Dist. 2002) (where overnight hospitalization required for victim who suffered gunshot to back and a graze on side of head, injuries were severe and warranted consecutive sentencing.) People v. Amaya, 321 Ill. App. 3d 923, 933 (2nd Dist. 2001) (whereone victim shot in the stomach and another in the back and both required surgery, consecutive sentence proper.) People v. Primm, 319 Ill. App. 3d 411, 427 (1St Dist. 2000) (consecutive sentence required where victim shot in the back of left thigh and taken to the hospital). 24. A sampling of cases where gunshot wounds were not found to constitute severe bodily injury to justify the imposition of a consecutive sentence include: People vJones, 323 Ill. App. 3d 451, 461 Dist. 2001) (bullet graze to victim?s right cheek bone requiring a band aid and nothing more did not constitute severe bodily injury) People v. Rice, 321 Ill. App. 3d 475, 486 (1St Dist. 2001) (trial court?s refusal to impose consecutive sentencing affirmed where victim was only hospitalized for two days as a result of bullet wounds) People v. Murray, 312 Ill. App. 3d 685, 694 (15? Dist. 2000) (where gunshot wound caused a fracture to victim?s big toes for which he was treated and released within 2 V2 hours, did not qualify as severe bodily injury) People v. Durham, 303 Ill. App. 3d 763, (1999) (gunshot injury to victim requiring no medical attention and described a small nick or cut? insuf?cient to constitute severe bodily injury for imposition of consecutive sentencing) People v. Ruiz, 312 Ill. App. 3d 49, 63 (lSt Dist. 2000) (gunshot wound to of?cer?s knee for which he did not seek medical treatment until after attending a police of?cer?s roundtable meeting did not constitute severe bodily injury.) 10 SR184 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 25. Finally, under 730 ILCS the maximum Consecutive sentence that may be imposed for offenses committed as a part of a single course of conduct where there was no substantial change in the nature of the criminal objective is twice the maximum sentence authorized for the two most serious felonies. In this case, that would put the upper sentencing limit at 120 years .in the Illinois Department of Corrections. CONCLUSION For the foregoing reasons, the imposition of sentence in this matter should be guided by the following principles: 1. A sentence must be irnposed for the offense of aggravated battery with a ?rearm because per Supreme Court edict, it is more serious than the offense of second degree murder. 2. A sentence of probation, which would deprecate the seriousness of the offense is unauthorized where aggravated battery with a ?rearm is a non?probationable offense. 3. A sentence must be imposed on each count of aggravated battery with a ?rearm based on: the indictment, which charged sixteen separate acts, the People?s consistent articulated theory of the case, and, the jury?s sixteen verdicts. 4. Any count for which this Court makes a ?nding of severe bodily injury is subject to a mandatory consecutive sentence. 5. The mandatory supervised release period for class offenses is three years (730 ILCS while the mandatory supervised release period for class 1 offenses is two years (730 ILCS 11 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 6. The interests of judicial economy would be best Served by the imposition of a concurrent sentence on the charge of second degree murder. RESPECTFULLY SUBMITTED, People of the State of Illinois Joseph H. McMahon Special Prosecutor, Kane County State?s Attorney osepfh H. McMahon Date: Joseph H. McMahon ARDC No. 6209481 People of the State of Illinois Kane County State?s Attorney and Special Prosecutor Of?ce of the Kane County State?s Attorney Kane County Judicial Center 37 777 Route 38, Suite 300 St. Charles, Illinois 60175 Telephone: 630-232?3500 12 SR186 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 I IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS r? 7'5? COUNTY DEPARTMENT, CRIMINAL DIVISION 3 PEOPLE OF THE STATE OF ILLINOIS Plaintiff, Case No.17 CR 4286 V. JASON VAN DYKE, Defendant. SENTENCING MEMORANDUM Now comes defendant, Jason Van Dyke, by and through is attorneys, who present this memorandum in support of sentencing. Defendant states as follows: WM 1. On October 5, 2018, ajury found defendant Jason Van Dyke (?Defendant?) guilty of one count of second-degree murder and sixteen counts of aggravated battery with a ?rearm (?aggravated battery"). The jury found defendant not guilty of of?cial misconduct. Defendant now appears before this Court for sentencing. 1113M 2. This Coun must decide whether defendant should be sentenced to one count of second degree murder only, one or more counts ofaggravated battery only, one count of both, or some combination thereof. Defendant?s position is that his aggravated battery convictions merge into his conviction for second degree murder due to the one-act, one-crime doctrine. He requests that this Court sentence him to probation on his second degree murder conviction. He supports his positions below. SR187 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 ARGUMENT I. Jason Van Dyke?s Convictions for Aggravated Battery with a Firearm And Second Degree Murder Murder Merge Pursuant to the One-act, One-Crime Doctrine Because Aggravated Battery is a Lesser Offense of Murder. 3. The prosecution has consistently argued that charges of aggravated battery with a ?rearm are a lesser included offense to the charges of murder. The prosecution has also consistently argued that all sixteen shots ?red by defendant caused Laquan McDonald?s death. Under these circumstances, aggravated battery is a lesser included offense and the aggravated battery and second degree murder convictions merge under the one-act, one crime doctrine. 4. ?The one-act, one-crime rule prohibits multiple convictions when the convictions are based on precisely the same physical act." People v. Mil/sap, 2012 IL App (4th) 110668, 1118, 979 1030. If it is determined that the defendant committed multiple acts, the court goes on to determine whether any of the offenses are lesser-included offenses. People v. Nunez, 236 111.2d 488, 925 1083, 1086 (2010). In other words, the one-act, one-crime analysis involves two considerations: (1) ?whether the defendant's conduct consisted of one physical act or separate physical acts?; and (2) ?if the court concludes that the conduct consisted of separate acts. the court must determine whether any of those offenses are lesser-included o?fenses.? In re Rodney 3., 402 Ill. App. 3d 272, 281-82. 932 588, 597 (2010). The second consideration applies to this case and requires the offenses merge. 5. The prosecution?s sentencing memorandum, recommending defendant be sentenced on aggravated battery counts, asserts that the one-act, one-crime does not apply to defendant?s case simply because they charged him separately for each shot. (St. M116, citing People v. Crespo, 203 Ill.2d 335, 788 NE. 2d. 1117 (2001)). In so arguing, the prosecution only IQ SR188 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 looks to the ?rst consideration under the doctrine, i.e. whether defendant?s conduct consisted of one or separate physical acts, and ignores the second consideration all together. Defendant concedes that unlike the prosecution in (.?respo, this prosecution team decided to charge him with each shot as a separate act and crime. As such, even though this offense contains "a series of closely related acts,? that could qualify as one act under the doctrine, the way in which the prosecution charged the case indicates ?that the State intended to treat the conduct of defendant as multiple acts.? Crespo, 788 at 1123 (2001). For this reason, alone, the prosecution alleges that defendant cannot now argue that the multiple shots constituted one act. However, the Crespo decision is distinct from the present scenario because the Crespo court was not required to conduct the second-step analysis due to the fact that prosecution did not charge the Crespo defendant in the same way as the prosecution did here. Crespo, 788 NE. 2d. at 1122?23. Thus, contrary to the prosecution?s assertion, Crespo does not mandate that this Court sentence defendant separately for every Under Crespo, the next step this Court is to determine if all sixteen separate aggravated battery acts are lesser-included crimes of second degree murder. In re Rodney 8., 402 Ill. App. 3d at 281-82. The prosecution has previously argued, and this Court agreed, that the sixteen counts of aggravated battery were lesser included offenses. 6. Prior to trial, the prosecution unambiguously argued that the aggravated battery counts were lesser included offenses of first degree murder. (Exhibit 1; State?s Response to Defendant?s Motion to Dismiss the Indictment, p. 3, stating, ?[T]he aggravated battery charges in the second indictment in this case are lesser included offenses of the first degree murder charges 1 The Crespo court also never faced the question of whether or not the sentence now argued by the prosecution violated the proportionate penalties clause. See Sec. c, 1123-24 infra, for defendant?s proportionate penalties argument. SR189 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 ?led in the indictment in 15CR20622 and therefore are not ?new and additional? charges that would be subject to compulsory The prosecution is judicially estopped from arguing otherwise now. See Seymour v. Collins, 2015 IL 118432, 1147 (holding that judicial estoppel prevents a party from changing position when the party has taken two positions, (2) that are factually inconsistent, (3) in separate judicial or quasi-judicial administrative proceedings, (4) intending for the trier of fact to accept the truth of the facts alleged, and (5) succeeded in the first proceeding and received some bene?t?). 7. At the time, this Court agreed with the prosecution?s argument, holding, ?If you look at the counts in the charging document here, it?s 2, 4, and 6 of the indictment, basically what they charge. it says in the he without lawful justification, shot and killed Laquan McDonald while armed with a ?rearm, knowing that such acts created a strong probability of death or great bodily harm to Laquan McDonald. And causing great bodily harm is pled in Counts 2. 4, and 6. So the aggravated battery with a firearm is actually a lesser included offense of those counts. Therefore, the additional charges, the new 16 counts that have been added are not new and additional.? (Exhibit 3; 11/6/17 hearing, Case law supports this Court?s ruling that aggravated battery is a lesser included offense. See People ex rel. Walker v. Pate, 53 485 (1973) (holding that ?aggravated battery is a lesser included offense of attempted murder"); People v. Temple, 2014 IL App (lst) 111653, 11 93 (?nding aggravated battery with a firearm a lesser included offense of attempt ?rst degree murder). While the Court applied the charging instrument approach, as opposed to the abstract elements approach in making that decision. the analysis of this Court is nevertheless on point under the abstract elements test. A review of the trial evidence illustrates defendant?s position. SR19O SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 8. During trial, the prosecution argued that the ?undisputed? evidence was that all sixteen gunshot wounds were contributing factors in McDonald?s death. To support this position, the prosecution presented the testimony of Dr. Ponni Arunkumar, who testified that McDonald died as a result of multiple gunshot wounds. In closing arguments, the prosecution cemented this point by noting that ?it is undisputed. every one of those shots contributed to his death. Both pathologists [Dr. Arunkumar and Dr. Teas] testi?ed that Laquan died from multiple gunshot wounds.? and ?basically bled to death.? (Exhibit 2; 10/4/18, p.16, emphasis added). Even now, the prosecution continues to maintain that the ?sixteen separate acts of aggravated battery with of a firearm to the death of Laquan Mcdonald.? (St. M. 119). If all sixteen shots contributed to his death, as the prosecution has consistently argued, all sixteen shots are lesser included offenses of second degree murder. See People v. O?Neal, 66 390, 401 (lst Dist. 2016) (noting that the State conceded throughout the case that every single shot defendant ?red was aimed at, and intended for, the occupants of the van, and because "the same proof that the State used to support its intentional and strong?probability murder charges,? defendant?s conviction for felony murder based on the predicate offense of aggravated battery was improper). Put another way, was is impossible for defendant to commit first degree murder with a firearm without first committing aggravated battery with a firearm. People v. Miller, 238 Ill. 2d 161, 173-75 (holding that under the abstract elements test, one offense is a lesser included offense of the other when it is ?impossible to commit the greater offense without necessarily committing the lesser offense?) 9. This Court?s prior rulings, the prosecution?s prior arguments and admissions. the facts of this case, the evidence from trial. and case law establish that the aggravated battery SRl9l SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 counts are lesser included offenses of second-degree murder. As such, this Court must enter a sentence on either one count of aggravated battery with a firearm or one count of second degree murder. People v. Powell, 2017 App (lst) 150705-U, 111139-42 (merging two counts of domestic battery into one count of aggravated domestic battery as lesser included offense, despite the fact that the two counts of domestic battery were charged as separate acts). 10. The question this Court must decide next is if the aggravated battery convictions merge into the conviction of second-degree murder or vice versa. Defendant submits that it is the former, and that this Court must sentence him on one count of second-degree murder. 11. Jason Van Dyke Must Be Sentenced on One Count of Second Degree Murder Instead of One Count of Aggravated Battery. As previously discussed, for sentencing purposes, the aggravated battery convictions in this case are a lesser included offense of murder. Defendant submits that second degree murder is also a greater offense, (?rst degree murder with a mitigating factor), so the aggravated battery convictions should merge into his conviction for second degree murder. A conclusion to the contrary would impermissibly eliminate second degree?murder as an offense in Illinois, which would violate the proportionate penalties and separation of powers clauses of the Illinois Constitution. Ill. Const. 1970, art. I sec. 11, and art. II, 1. a. The Sixteen Aggravated Battery Counts Merge into Second-Degree Murder Because First Degree Murder is the Greater Offense. 12. As discussed in Section I. aggravated battery is a lesser included offense of ?rst degree murder. In other words, ?rst degree murder is the greater offense. Defendant submits that second degree murder is also a greater offense of aggravated battery. A conclusion to the SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 contrary would render defendant?s conviction for second degree murder a nullity and contravene legislative intent. 13. Before the jury was able to convict defendant of second-degree murder in this case, the jury had to first ?nd that the State had proven the elements of ?rst-degree murder. See People v. Staake, 2017 IL 121755, {[40 (2017) (noting that that ?[t]he State must prove the elements of ?rst degree before the jury can even consider second-degree murder). As this Court read to thejurors, the instructions provided: ?If the State proves beyond a reasonable doubt that the defendant is guilty of first degree murder, the defendant then has the burden of proving by a preponderance of the evidence that a mitigating factor is present so that he is guilty of the lesser offense of second degree murder and not guilty of ?rst degree murder. In deciding whether a mitigating factor is present you should consider all the evidence bearing on this question.? (10/04/2018, p. 85-86). 14. The next step, for the jurors, was to decide if there was a mitigating factor present warranting a conviction for second degree murder. See People v. Manning, 2018 IL 12208], 1118 (2018) (commenting that second-degree murder is ?first degree murder plus defendant's proof by a preponderance of the evidence that a mitigating factor is present?) This Court read the instruction to be: mitigating factor exists so as to reduce the offense of first degree murder to the lesser offense of second degree murder if . . . at the time of the killing, the defendant believes that circumstances exist which would justify the deadly force he uses, but his belief that such circumstances exist is unreasonable.? (10/04/2018, at p. 91). 15. The verdict establishes that the jurors found a mitigating factor existed, defendant believed, unreasonably, that deadly force was necessary. The fact that thejury found a mitigating factor existed so as to not warrant a first degree murder conviction does not change the merger analysis. Instead, it supports defendant?s argument that he should be sentenced to SR193 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 second degree murder. It is well-settled that ?rst degree is a greater offense than aggravated battery. Jurors found defendant guilty of ?rst degree murder with the presence of a mitigating factor, second degree murder. As such, the presence of the mitigating factor should not punish defendant. Thus, when the jury took the ?rst step and found defendant guilty of ?rst-degree murder, the lesser included aggravated battery counts merged into first-degree murder even though the relative punishments prescribed by the legislature for second degree murder is less than that for aggravated battery with a ?rearm. Agee, 205 146; Pate, 53 Ill. 2d 485. b. Sentencing Jason Van Dyke on the Aggravated Battery Counts is Improper Because It Would Effectively Eliminate Second Degree-Murder in Illinois. 16. Where there is a violation of the one-act, one-crime rule, sentence should be imposed on the more serious offense and the less serious offense should be vacated.? People v. Arris. 232 Ill. 2d 156. 170 (2009). In determining which offense is the more serious, a reviewing court generally compares the relative punishments prescribed by the legislature for each offense. People v. Payne, 2019 IL App (4th) 150972-U. The lesser classed offense generally merges into greater classed offense. People v. Duszkewycz, 189 299, 301 (1963). However, this case presents this Court with a unique situation. As previously discussed, defendant maintains second degree murder is the greater offense due to the fact it is ?rst degree murder with a mitigating factor. Yet aggravated battery with a ?rearm has a greater punishment than second degree murder. and it is the greater classed offense. Under these facts. sentencing defendant to aggravated battery would violate well-established law that prohibits sentencing schemes that effectively eliminate the offense of second-degree murder. SR194 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 17. The jury found that defendant committed ?rst degree murder, but he established by a preponderance of the evidence that he believed, albeit unreasonably, that he acted in self defense. Based on the ?nding of a mitigating factor, defendant?s minimum sentence went from a minimum of 45-years imprisonment to possible sentence of probation. 720 ILCS 5/9-2; 730 ILCS Aggravated battery with a ?rearm requires a minimum sentence of 6 years and is not probationable (730 ILCS Agreeing with the prosecution?s argument that the law requires a sentence on aggravated battery would render the jury?s ?nding of the mitigating factor meaningless. The Illinois Supreme Court and Appellate Courts have repeatedly recognized such a practice is legally impermissible as such a result would effectively nullify the second degree murder statute. See e. People v. Morgan, 758 813, 838 (2001); People v. Drake/Oral. 564 792. 796-97 (1990); People Rosenlhal, 889 N.E. 2d 679 (2008); People v. Space, 2018 1L App. (lst) 150922; People v. O'Neal, 66 390, 399 (lst Dist. 2016). A review of two of these cases, People v. Drakeford, 564 792, 796-97 (1990) and People v. Morgan. 758 813, 838 (2001, illustrates defendant?s point. 18. In Drake/?0rd, the Illinois Supreme Court considered whether a defendant could properly be sentenced on the Class felony of armed violence predicated on aggravated battery, where the jury found defendant guilty of second-degree murder. The Court held that the sentence on the Class felony of armed violence was improper. In doing so, the court opined that ?if we were to hold that a defendant could be sentenced for armed violence predicated on aggravated battery where there was a simultaneous conviction for second degree murder arising out of the same act. we would render ineffective the second degree murder statute." Id. In fact. time a defendant commits second degree murder based on an unreasonable belief of SR195 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 self?defense, the defendant will also possess the intent or knowledge necessary for a conviction on aggravated battery causing great bodily harm. Thus, in the future, prosecutors will seek sentencing on the Class armed violence predicated on aggravated battery conviction rather than on the Class 1 second degree murder conviction.? 1d. The Court held that such a would effectively nullify the second degree murder statute.? Id. 19. In Morgan, the Illinois Supreme Court faced the question of whether or not aggravated battery and aggravated discharge ofa ?rearm were permissible predicate offenses for felony murder. The Court held neither offenses were. In so ruling, the Court agreed with the lower court that shooting necessarily encompasses conduct constituting aggravated battery. . Id. In that regard, every shooting encompasses ?great bodily harm, as well as conduct constituting aggravated discharge of a ?rearm, discharging a firearm in the direction of another.? Id. Thus, under the sentencing scheme utilized by the prosecution, all fatal shootings could potentially "be charged as felony murder based upon aggravated battery and/or aggravated discharge of'a firearm.? Id. The result of such a scheme could ?effectively eliminate the second-degree murder statute and also to eliminate the need for the State to prove an intentional or knowing killing in most murder cases.? 1d. As such, the Court concluded that in order to be a permissible predicate for felony murder ?the predicate felony underlying a charge of felony murder must have an independent felonious purpose.? 1d. at 844. The First District and other appellate courts have consistently reaf?rmed the reasoning in Morgan. See People Rosenthal. 889 NE. 2d 679 (2008); People v. Space, 2018 IL App. (1 st) 150922. 20. Applying the reasoning of Morgan and Drakeford, all sixteen of the aggravated battery counts are inherent to the conviction for second-degree murder. Just as in Morgan and 10 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 Drakeford. sentencing defendant to aggravated battery would effectively nullify second-degree murder. Indeed, a sentence on any of the aggravated battery counts would create a system whereby the prosecution could effectively eliminate second?degree murder for defendants who shoot when in fear for their lives. In every prosecution for ?rst-degree murder using a ?rearm, the prosecution could simply charge separate counts of aggravated battery with a firearm (or attempted murder), which would render a finding on second-degree murder a nullity. Not only that, but it would also render all mitigating factors found by the jury to be virtually meaningless, as a defendant could potentially receive a longer minimum sentence after being convicted of second-degree murder (and the accompanying Class offense based upon the same acts) than the minimum sentence for ?rst degree murder. The prosecution admits, ?[t]he con?uence of the mandatory consecutive sentence statute and the rule of law established in People v. Lee allows for the anomalous possibility of a minimum prison sentence of 96 years in the Illinois Department of Corrections.? (St. M. 1117). The legislature clearly did not intend such an anomalous result. The legislature enacted a speci?c sentencing scheme for second degree murder (probation or 4-20 years served at ?fty percent). Sentencing defendant on the aggravated battery, which requires a minimum of six years at eighty-five percent renders that sentencing scheme a nullity. As such, sentencing defendant to one count aggravated battery (much less 16 counts) contravenes legislative intent and results in an unjust sentence. See Manning, 2018 IL 12208], 1l2l (stating that ?in construing a statute, courts should presume that the legislature did not intend unjust consequences?) 21. Cases cited by the prosecution to support a sentence on any counts of aggravated battery. and not second degree murder, have not addressed this issue. (St. M. 111110-17, citing ll SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 Crespo and Lee). In arguing defendant should be sentenced to consecutive counts of aggravated battery, the prosecution speci?cally relies on People v. Lee, 821 NE. 2d 307 (2004). (St. M. 111110?17). However. the defendant in Lee did not argue that sentencing him to aggravated battery nulli?ed his second degree murder conviction. He did not need to put forth this argument because his 15-year sentence for aggravated battery was less than his 20-year sentence for second degree murder. For that reason, Lee does not control this Court?s analysis. Defendant submits that if the Lee defendant had raised the arguments defendant now presents, as they did in Morgan and Drake/22rd, the Court would have reached a different conclusion, a fact supported by the decisions in Rosenthal and Space. 22. In sum, this Court must sentence defendant on his second degree murder conviction in order to not render that conviction a nullity. A conclusion to the contrary does not comport with the jury?s verdict, legislative intent, or common sense. c. Sentencing Jason Van Dyke on the Aggravated Battery Counts Via/ates the Proportionate Penalties Clause. 23. The prosecution acknowledges the possible outcome of this case, if this Court grants its argument, is that defendant?s minimum sentence could be 96 years? imprisonment. To its credit. the prosecution also acknowledges such a sentencing scheme might violate the proportionate penalties clause of the Illinois Constitution. (St. M. 1117). Defendant agrees. As such. the arguments advanced by the prosecution not only would render second degree murder a nullity but are also unconstitutional. 24. The proportionate penalties clause provides, ?[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.? Ill. Const. 1970, art. 1 sec. 11. Sentencing defendant to 96 years? 12 SR198 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 imprisonment on 16 counts aggravated battery, where the jury found defendant guilty of second degree murder, violates the proportionate penalties clause. Under such a sentencing scheme, defendant is, in essence, being penalized for requesting an instruction of second-degree murder. l-lad defendant been convicted of ?rst-degree murder, it is unquestionable that the aggravated battery counts would have merged into first-degree murder conviction. The defendant?s minimum sentence would have been 45 years? instead of 96. However, under the prosecution's approach, defendant would be subject to a 96-year minimum sentence because the jury found mitigating factors that lessened his culpability. Such a sentencing scheme is not in accordance with ?the seriousness of the offense and with the objective of restoring the offender to useful citizenship.? Ill. Const. 1970, art. I see. 11. d. Sentencing Jason Van Dyke on the Aggravated Battery Counts Via/ates the Separation of Powers. 25. Any sentencing scheme that sentences defendant on the aggravated battery counts violates the separation of powers, because it judicially eliminates the second?degree murder statute. The Illinois Legislature is the only body vested with the power to enact laws and eliminate them. 111. Const. 1970. art. 11. 1; People v. Peterson, 2017 IL 120331 1129 (2017) (?The separation of powers clause of the Illinois Constitution provides that the ?Iegislative. executive and judicialbranches are separate? and that branch shall exercise powers 3? properly belonging to another. As explained in Section Il(b), sentencing defendant on the aggravated battery counts effectively eliminates second-degree murder. Consequently, if this Court sentenced defendant on the aggravated battery counts, it would result in the judiciary effectively exercising legislative power to eliminate second-degree murder. Jason Van Dyke Should Be Sentenced to Probation In Light of the Relevant Mitigating Factors and Lack of Aggravating Factors. 13 SR199 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 26. Defendant is a law abiding citizen who served almost 15 years as a Chicago Police Officer. Defendant has no criminal background. He is responsible for supporting two teenage children and his wife, and he is unlikely to reoffend. He was convicted of a crime that is unlikely to reoccur. And. as a police of?cer, he faces immense danger if he is imprisoned in the Illinois Department of Corrections. Given the unique circumstances of this case and the overwhelming evidence presented in mitigation, the appropriate sentence is a period of probation. 27. The Illinois Legislature. in enacting the second-degree murder statute and setting penalties for its violation, recognized that a wide range of circumstances might arise that could result in a defendant being convicted of second-degree murder. As a result, it classi?ed second-degree murder as a Class 1 offense. and it authorized a sentencing range of four to twenty years? imprisonment. 720 ILCS 5/9-2; 730 ILCS The Legislature also, in recognizing that not all second-degree murders necessitated prison sentences, authorized a sentence of probation or conditional discharge. Id. 28. The legislature has also directed the courts to consider certain factors in mitigation in determining whether to withhold or minimize a penitentiary sentence. 730 ILCS Almost all of the statutory mitigating factors apply to defendant and this incident. Only one of the legislative aggravating factors applies. physical harm. 730 ILCS However. this Court cannot consider that factor in sentencing defendant because serious harm is inherent in the offense of second-degree murder. See People v. Sanders, 58 661, 666 (3rd 2016) (remanding for a new sentencing hearing where the trial court relied on the fact that 14 SR2OO SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 ?defendant's conduct caused or threatened serious harm, a factor inherent in the offense of first degree murder. . . 29. Additionally, mitigation evidence in the form of testimony from the defendant?s family, friends, and co-workers also supports the fact that defendant should receive a sentence of probation. See People v. Harris, 319 Ill. App.3d 534 (3rd Dist. 2001) (noting that a defendant convicted of second-degree murder in a shooting death was ?sentenced to 48 months of probation, 364 days of periodic imprisonment, 364 days ofelectronic home detention, 100 hours of community service, and restitution of People v. Swanson, 211 510 (lst Dist. 1991) (noting that a defendant convicted of second-degree murder in a strangling death was "sentenced to three years probation with 26 weekends in the Cook County People v. Peoples, 219 Ill.App.3d 703 (lst Dist. 1991) (noting a defendant was sentenced to four years of probation for second-degree murder). 30. A sentence of probation is also appropriate in this case in light of the fact that defendant is the primary provider for his wife and children. See People v. Maldonado. 240 Ill. App. 3d 470, 484-85 (lst Dist. 1992) (reducing defendant?s sentence for ?rst degree murder to the minimum sentence of 20 years? based, in part, on the fact that the defendant was the father 01' two small children). Furthermore. this Court must consider danger the defendant will face in custody as a result of his status of a police of?cer. This Court should consider that the greater danger defendant faces in custody does not serve the objective of the proportionate penalties clause. which is restoring defendant to useful citizenship. See 111. Const. 1970, art. I sec. 11. 15 SR201 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM 124535 CONCLUSION For the reasons discussed, defendant requests that this Court sentence him on one count 01? second degree murder. In light ofthe overwhelming mitigating factors and the absence of aggravating factors, he asks that his Court sentence him to probation. mmrvised Release. mcurrent with AND: consecutive to the sentence imposed under case number(< .101? WEED IT IS FURTHER ORDERED THAT JUDGE1HNCENTGAUGHAN-155 JAN 1?8 2919 IT IS FURTHER ORDERED that the Clerk provide take the defendant into custody and deliver him/her :he Sheriff of Cook County wit to WM: of him/her into custody and confine him/her in a manner Chga c: gu new 5?31 a copy of this Order and that the Sheriff Corrections and that the Department take fulfilled. I a sentence is yf?/lg DATED .IANUARY 18, 2019 /7 CERTIFIED BY A MISTER DEPUTY CLERK VERIFIED BY ,cnbo JUDGE: I I GAUGHAN, VI CEN I IQ I 01/18/19 GCPL CCG N305 SUBMITTED - 3866661 - Criminal Appeals, OAG - 2/11/2019 11:22 AM SR253