Illinois Attorney General Kwame Raoul’s office is “reviewing” the 6-year, 9-month sentence handed down last week to Jason Van Dyke for the murder of Laquan McDonald.
Cook County Judge Vincent Gaughan’s decision to sentence the 40-year-old former Chicago police officer to 81 months — a term which could be cut by as much as half, with credit for good behavior — stunned McDonald’s relatives and activists for whom the 17-year-old’s death had become a rallying cry.
A spokesman for Raoul, who was sworn in last week after serving two terms as a former state senator, said the office was conducting a review of the “record and the law” in the case.
Kwame Raoul | Sun-Times files
If the AG’s office were to intervene in the case, it would be unusual, but not unprecedented.
The office has standing to intervene in nearly any criminal case, though any challenge to the sentence would have to based not just on an argument that Gaughan’s prison term was too short, but that the sentence doesn’t follow the law, said longtime defense attorney Stephen Richards.
Raoul, or Special Prosecutor Joseph McMahon, who prosecuted Van Dyke, could file what is called a writ of mandamus with the state Supreme Court.
“The Attorney General is, formally, the attorney of record in any case that goes before the (state) Supreme Court,” Richards said. “It’s usually only a formality, but they do get involved in a case that could involve the entire state.
“That said, I have never heard of the attorney general getting involved in a case to challenge a sentence where the local state’s attorney didn’t want to push for it.”
Gaughan’s sentence would seem a ripe target for appeal, Richards said, not because it was shorter than some anticipated or hoped to see, but because Gaughan made an unusual— and possibly unlawful — decision on which counts Van Dyke was sentenced for.
Gaughan ruled that he had to sentence Van Dyke based on his conviction on a single count of second-degree murder, which carried a sentence of four to 20 years, rather than on any of the 16 counts of aggravated battery with a firearm for which Van Dyke was also found guilty. Aggravated battery of a firearm carries a minimum sentence of six years, and a maximum of 30.
In court last week, Gaughan based his decision on a state Supreme Court ruling that said Van Dyke had to be sentenced based on the most-serious count of conviction, which Gaughan ruled was second-degree murder, not aggravated battery. But his ruling was based on a concurrence to that ruling issued by a single judge, rather than the order drafted by the majority of judges who ruled on the case, Richards said.
After the verdict was handed down McMahon did not seem inclined to appeal the sentence.
“It strikes a balance between holding Jason Van Dyke accountable, but also recognizing his service as a police officer as well as the fact that otherwise he has no criminal record,” said McMahon, who had argued for a sentence of 18 to 20 years.
In an email, McMahon’s spokesman, Chris Nelson said, “We are currently reviewing the trial court’s ruling in conjunction with the relevant case law and statutory authority that bears on the sentence imposed on Jan. 18. The unique facts of this case require consideration of the complex principals of Illinois law.”
Van Dyke’s lawyer, Dan Herbert, said the time for the attorney general to intervene was before Gaughan handed down his sentence. Van Dyke’s legal team had argued that Van Dyke should be sentenced on the second-degree count, not for the aggravated battery counts, a position spelled out in court filings in ahead of the sentencing hearing.
“It is disappointing that yet another politician has chosen to exploit the tragic death of Laquan McDonald for his own political gain,” Herbert said in a statement. “The Illinois Attorney General could have filed an amicus brief in response to our arguments. He did not. Now he suddenly has concerns after the sentencing in the wake of some public outcry. This is about politics not the law.”
01-All No Sub,02-Pol,19-Legal,26-Delivered
Feeds,News,Region: Chicago,City: Chicago
via Chicago Sun-Times http://bit.ly/2xAxGgE
January 24, 2019 at 03:05PM
Illinois Delivered 