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Often in cases where a police officer is charged with murder, the predictions of the most cynical observers turn out to be correct—the officer escapes the “justice system” into which they have processed so many others.
But in this case, the murder trial of Jason Van Dyke, the former Chicago police officer who shot 17-year-old Laquan McDonald 16 times, the outcome truly seems up for grabs.
It is the first time an on-duty Chicago police officer has been charged with murder since anyone in the city can remember. And it represents a small part of a system trying to attack its cancer. Someone from inside the department tipped off a journalist to bring the case to light. Plenty of officers have also fought against accountability, beginning with those who “shooed away” witnesses to the homicide, and according to a civil suit [PDF], took at least one witness into custody overnight to tell her something akin to “you didn’t see what you think you saw.”
So far, in Van Dyke’s trial, two police officers have testified that they didn’t use lethal force (or indeed any force) because at the scene they decided it wasn’t necessary. Another officer, Joe Walsh, who was shift partner of the accused that night, stood by Van Dyke seemingly at every turn in his testimony—at one point standing in the middle of the courtroom to demonstrate how he remembered Laquan moving before the shooting.
But on Tuesday, the second day of trial, the prosecution coaxed something important out of Walsh. First, Walsh said that Van Dyke took “one step” toward Laquan, something that’s clear from the video.
“Did your training tell you to create distance between yourself and someone with a knife?” a prosecuting attorney asked. Walsh paused. “I would assume if you’re in fear of your life or your [safety] that you would,” Walsh replied, which would suggest Van Dyke wasn’t that scared.
Some confusion arose on the second day of trial when the prosecution attempted to establish a length of time for the volley of 16 shots.
Van Dyke’s lead attorney, Daniel Herbert, stated in opening arguments that it’s unknown, or unknowable, how long it took to fire those shots. Herbert said that within one and a half seconds one may not understand that they have dropped a subject to the ground and that an “average” officer can fire four to five times per second. By his logic, someone could fire off 16 shots and possibly not know that their subject had fallen.
None of that holds up if the shots took 12 ½ seconds, as the prosecution has always asserted the video shows. Indeed, in the video, gruesome-looking puffs of smoke blast forth from Laquan’s body—or at least very near it—more than 12 seconds after he had fallen.
If each puff of smoke corresponds to the time of impact of a bullet, that proves this longer timeline, where shots were fired every three-quarters of a second on average. That’s a more slow, concerted, killing. But when the prosecution brought an FBI video forensics technician Mark Messick to the stand on Tuesday, he could not conclusively say that the puffs of smoke corresponded with shots entering the body.
The defense suggested—and the technician could not rule it out—that the smoke was caused by bullets hitting the ground. (Despite this being absurd since 16 casings were found; 16 bullets were missing from magazines; and Laquan’s autopsy showed that 16 shots hit him.) It would appear the defense intended to cast doubt on Messick himself.
Messick soon made a peculiar statement: in the hundreds of videos of shootings he witnessed, he had never seen smoke coming from a body after it was shot. (This reporter doesn’t know what to make of that.)
Judge Vincent Gaughan dismissed the video technician and ordered his testimony stricken from the record because the judge claimed he was an expert in video forensics, not ballistics, and thus could not speak to the effect of bullets on a body.
In case you’re not a Chicagoan, the unfortunate story of the night Laquan died goes like this. The boy was allegedly high on PCP, according to a toxicology report from the investigation that, granted, remains fraught with still-outstanding charges from officials’ lying on forms.
After Laquan allegedly accosted a truck driver in a parking lot, someone called police, who started following the teen. Laquan brandished a three-inch knife and, clearly upset, popped the tire of one of the CPD’s Chevy Tahoes and scratched its windshield with the knife. But other than that, he “ignored” police, according to testimony from the officer who followed him for three blocks.
Multiple officers have so far testified that they didn’t see him threaten any person, including an officer. Instead, they endeavored to keep him away from the two restaurants in the area—Burger King and Dunkin’ Donuts—but one officer said that it didn’t appear he wanted to go inside anyway.
Police radioed for a Taser, which at the time of the 2014 incident were few and far between. A few minutes later, five Chevy Tahoes and 10 officers, several on foot, followed the boy at a brisk walk.
Van Dyke’s car arrived. According to video, Van Dyke was not out of his car more than a few seconds before he opened fire. Prosecutors argued that wasn’t enough time to evaluate the situation.
“Not one shot was justified,” McMahon, the prosecutor, said in court Monday.
Van Dyke initially attempted to reload his weapon after firing the 16 shots. Just before opening arguments, his attorneys tried to stop prosecutors from arguing that the reload showed his intent to kill. (All cops are trained to reload after shooting, they said.) The judge didn’t buy it. Prosecutors will be allowed to use that to demonstrate intent, since convicting someone on a first-degree murder charge requires demonstrating one’s intent to kill.
It’s possible Van Dyke’s perception of Laquan could have been influenced by police radio transmissions en route. Word had gone out about the popped tire and scratched windshield. But on Monday the prosecution countered that, according to a directive about use of force that had been issued by police brass, even the first shot wasn’t justified. Van Dyke’s partner, who did not shoot, testified on Tuesday that he had not read the directive.
All seven officers present that night lied on their official reports of the incident, in effect perjuring themselves. Three so far face charges related to that. Some witnesses will be granted “use immunity,” which prevents them from being prosecuted for what they share on the stand. But McMahon, the prosecutor, told activists this month that when calling witnesses, he’d steer clear of questions not relevant to Van Dyke’s charges.
According to a recent study published in Granta magazine, one in three Americans who are killed by someone they don’t know are killed by police. Eight percent of male homicides in America are committed by police, according to a study in the American Journal of Public Health. One-third of Chicago’s city budget is devoted to funding its police force, and from 1986 to 2015, police shot one Chicagoan a week on average. The majority of victims of police shootings are black; the vast majority are people of color.
Community organizer William Calloway represents a coalition of more than a dozen activist groups that wanted a presence at the trial. Calloway told reporters after the first day that he thought McMahon did well during opening arguments.
Calloway noticed that, when the prosecution called CPD patrolman Joseph McElligott to testify, two rows of police in the gallery looked at one another, stood up, and left the room in unison.
Much of the trial is still to come. The public does not yet know whether Van Dyke himself will testify. Herbert, Van Dyke’s lead attorney, claims to have “recreated … with the help of drones and other technologies” a video that claims to show what Van Dyke would have seen from his perspective. That is to say, a video that does not exist without re-enactment or digital special effects.
Suffice it to say that I am incredulous to the idea such magicks could hint at accuracy. It’s an open question whether Judge Vincent Gaughan will allow the “recreated” video as evidence. Since it was featured in opening arguments, presumably he has heard about it’s existence. At the very least, it would appear he wants to hear what some experts say about it before disqualifying the video.
Another judge-dependent question: whether Gaughan will allow all the continued talk, on the part of the defense, about what Laquan was doing in the hours—even days—leading up to the shooting.
From what little I know about the law, all that matters is what Van Dyke learned about the situation prior to pulling up in his car and what he saw and heard in the six seconds (at most) between exiting the car and gunning the teen down. His lawyers said on Monday that he knew “nothing of Laquan” prior to exiting the car.
Yet, according to some activists at the courthouse on Monday, certain law or case law—used most often during the era of lynching—may allow backstory-type material about a person to be admitted in court. This has included things like whether a person returned their library books, whether they had several partners, or whether they regularly attended church.
If the judge gives the defense leeway to go this route, activists tell me they will not be happy.