By MICHAEL TARM, Associated Press
CHICAGO (AP) — Some legal experts believe there's a reasonable chance the prison sentence of less than seven years imposed on a white Chicago police officer last week for second-degree murder in the fatal shooting of black teenager Laquan McDonald 16 times could be tossed out and a new sentencing ordered.
Van Dyke, 40, went to trial charged with first-degree murder, which carries a mandatory minimum prison term of 45 years. But jurors in October opted to replace it with second-degree murder after finding Van Dyke shot McDonald out of fear for his life, though that fear was unreasonable.
They convicted him of one count of second-degree murder, which carries a prison term of between four and 20 years, and of 16 counts of aggravated battery — one for each shot. Each count of aggravated battery carries a prison term of between six and 30 years. Because of the number of counts and other factors, it's widely agreed that Van Dyke could have gotten a far stiffer sentence if sentenced on the battery counts.
If he is not resentenced, Van Dyke will almost certainly serve just half of his second-degree murder sentence and end up behind bars for only around three years when credit for good behavior is factored in. Many community activists have called the sentence a mere slap on the wrist.
Illinois Attorney General Kwame Raoul said this week that his office would review the Van Dyke sentence.
Here's a look at how that happened and some of the legal issues involved:
Q: WHAT'S THE BIG LEGAL ISSUE?
A: At sentencing, Judge Gaughan laid out the decisive legal question he had to answer before he could pronounce sentence. "Was it more serious," he asked, "for Laquan McDonald to be shot by a firearm or is it more serious for Laquan McDonald to be murdered by a firearm?"
The issue stems from what is known in Illinois as the one-act, one-crime doctrine. If the accused is convicted of multiple crimes for what amounts to a single act, then the judge can only sentence the defendant for the most serious crime. The doctrine was designed to prevent prosecutors from trying to inflate sentences by piling charges onto a single act.
Under the doctrine, a bank robber who beat a guard outside a bank, who fatally shot someone inside and who got away with the bank's money would have committed three separate acts and so can be sentenced for all three. But Van Dyke's shooting of McDonald was considered a single act; the 16 shots fired over a span of no more than 30 seconds both murdered him and physically battered the 17-year-old.
Gaughan said second-degree murder was the more serious crime, adding: "Common sense comes to an easy answer."
Q: CONTROLLING PRECEDENT?
A: Several legal experts said his answer may sound easy and intuitive, but that it's also wrong. They say his conclusion runs directly counter to guiding precedent — a 2004 Illinois Supreme Court ruling in a case called People v. Lee that also involved someone convicted of both second-degree murder and aggravated battery.
The majority of justices concluded that trial judges need simply look at the sentences Illinois legislators deemed appropriate for each crime: Between two crimes, the one with the higher sentence is the more serious. Though it's counterintuitive, they said unambiguously that aggravated battery had the higher sentence, hence is the more serious crime under Illinois law.
In his brief, 10-minute explanation of his sentence for Van Dyke, Gaughan did refer to the People v. Lee case. But he only cited its dissent, in which Justice Robert Thomas said the length of the sentences shouldn't be the sole factor determining the seriousness of a crime. Thomas suggested judges should have more leeway and look at each sentencing on a case-by-case basis.