Jason Van Dyke sentence petition, office want the state’s highest court – News

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Jason Van Dyke sentence petition, workplace need the state’s highest court docket.

Particular prosecutors and the Illinois lawyer basic’s workplace need the state’s highest court docket to order a resentencing for Jason Van Dyke, a transfer that if granted might lead to a a lot harsher jail time period for the previous Chicago police officer convicted within the slaying of 17-year-old Laquan McDonald.

Their petition, filed Monday, doesn’t explicitly goal the size of the 6 3/4-year sentence, which many activists criticized as lenient. However Kane County State’s Lawyer Joseph McMahon, appointed to deal with the Van Dyke case, and Lawyer Normal Kwame Raoul argue that Decide Vincent Gaughan sentenced Van Dyke below improper authorized tips, and observe {that a} considerably longer sentence could be justifiable below state legislation.

“I acknowledge {that a} trial decide’s discretion in sentencing is to be given nice deference,” Raoul mentioned at a information convention Monday. “Nonetheless, it’s within the curiosity of justice that we do all inside our energy to guarantee that such train in discretion be utilized in keeping with the mandates of legislation, irrespective of who the defendant and irrespective of who the sufferer.”

In response, Van Dyke’s attorneys mentioned the prosecutors’ motivations had been plainly political.

“This case has come to signify all of the wrongs, perceived wrongs, of the Chicago Police Division, and it’s fallen upon Jason Van Dyke as an individual,” lawyer Jennifer Blagg mentioned. “So what he represents politically is why that is occurring.”

Whereas the sentence initially prompted the protection to again off guarantees to enchantment Van Dyke’s conviction, Blagg mentioned the prosecutors’ petition compelled their hand, and a discover of enchantment was filed Friday.

“Jason and his household very a lot need to put this behind them,” she mentioned. “He has expressed that he doesn’t desire a new trial, he doesn’t need to undergo that once more. He’s not pleased with being convicted, clearly, however the toll this has taken on his household is unbelievable.”

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Van Dyke, 40, was convicted final 12 months of 1 rely of second-degree homicide and 16 counts of aggravated battery within the 2014 on-duty taking pictures of McDonald. He was sentenced final month to six ¾ years in jail.

Gaughan sentenced Van Dyke solely on the second-degree homicide conviction, ruling that it was the extra critical offense and that the aggravated battery counts ought to “merge” into it for functions of sentencing.

“Is it extra critical for Laquan McDonald to be shot by a firearm or is it extra critical for Laquan McDonald to be murdered by a firearm?” Gaughan requested from the bench earlier than imposing sentence. “Widespread sense involves a straightforward reply on that on this particular case.”

However the prosecutors’ petition argues that Illinois legislation really makes aggravated battery with a firearm the extra critical offense, and subsequently the state Supreme Courtroom ought to order Gaughan to resentence the ex-patrol officer on these convictions as a substitute.

The court docket also needs to direct Gaughan to find out which of the 16 gunshot wounds induced “extreme bodily harm” and sentence him to consecutive jail phrases for these counts, they state.

Prosecutors have argued that not less than two of the injuries induced that type of harm, which, the petition contends, would imply Van Dyke would face a minimal sentence of 18 years: six years for every of these two wounds, plus six extra years for the opposite 14 counts.

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An aggravated battery with a firearm conviction carries a sentence of six to 30 years in jail. The vary for second-degree homicide is 4 to 20 years, however a decide can impose probation as a substitute.

If the state Supreme Courtroom chooses to think about the petition, there are just a few potential outcomes, mentioned longtime prison protection lawyer Mark Lyon.

“They may both should say, ‘Decide Gaughan, you must resentence this particular person,’ or they should say (they) had been flawed within the case the place they mentioned second-degree homicide was all the time much less critical than aggravated battery with a firearm,” Lyon mentioned, referring to a earlier ruling.

The court docket probably might additionally order Gaughan to resentence Van Dyke on the aggravated battery however not make him rule on which of the 16 photographs induced “extreme bodily harm,” Lyon mentioned, which might open the door for Gaughan to impose a jail time period the identical because the earlier sentence, or barely shorter.

However even in that state of affairs, Van Dyke would serve barely extra jail time. Inmates convicted of aggravated battery with a firearm should serve not less than 85 p.c of their sentences — far increased than the 50 p.c required by a second-degree homicide conviction.

“It’s fairly unlikely that Mr. Van Dyke comes out of this with out some type of upward modification of his sentence,” Lyon mentioned. “How a lot, who is aware of.”

Van Dyke’s attorneys plan to file an objection to the prosecutors’ movement. The Supreme Courtroom shouldn’t be obligated to just accept the prosecutors’ petition in any respect, and there’s no time-frame during which it should decide.

After the lawyer basic’s workplace final month introduced it was conducting a “assessment” of the sentence, Van Dyke’s trial lawyer, Daniel Herbert, additionally blasted the choice as politically motivated — an allegation Raoul on Monday mentioned was “nonsense.”

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“I’m not going to opine on my opinion on the size of the sentence. What I’ll opine on is whether or not or not the legislation needs to be adopted, and I imagine the legislation needs to be adopted,” he mentioned.

McMahon, who had initially requested a time period of 18 to 20 years in jail, instructed reporters after the sentencing final month that he accepted the decide’s resolution.

On Monday, he mentioned he’s nonetheless happy with the sentence, however after contemplating the authorized foundation of Gaughan’s ruling, he thinks the authorized problem is acceptable.

“As we have now had a possibility to step again and type of consider each the legislation and the way the sentence was imposed, we get pleasure from a while and counsel in working with the lawyer basic’s workplace,” he mentioned. “I believe the larger message on this case is to guarantee that the sentence that’s imposed is a sentence that’s lawful.”

Van Dyke shot McDonald in October 2014 because the 17-year-old walked away from police on a Southwest Aspect road whereas holding a knife. Graphic police dashboard digital camera footage of the taking pictures — ordered launched by a decide greater than a 12 months later — sparked weeks of chaos and political upheaval, exacerbating the already fraught relationship between Chicago police and minority communities.

Van Dyke’s monthlong jury trial final fall resulted in a historic responsible verdict, making him the primary Chicago police officer in half a century to be convicted of homicide for an on-duty incident.

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