CHICAGO — Special prosecutors and the Illinois attorney general's office are challenging former Chicago police Officer Jason Van Dyke's prison sentence before the state's highest court.
A petition filed Monday does not explicitly target the length of the nearly seven-year sentence, which many activists have criticized as too lenient. But it does note that a significantly longer sentence would be justifiable under state law.
Kane County State's Attorney Joseph McMahon, appointed to handle the Van Dyke case, and Attorney General Kwame Raoul argue in the petition that Judge Vincent Gaughan sentenced Van Dyke under improper legal guidelines.
Van Dyke was convicted of one count of second-degree murder and 16 counts of aggravated battery in the 2014 on-duty shooting of Laquan McDonald. He was sentenced last month to 6 } years in prison.
Gaughan sentenced Van Dyke only on the second-degree murder conviction, ruling that it was the more serious offense and that the aggravated battery counts should "merge" into it for purposes of sentencing.
"Is it more serious for Laquan McDonald to be shot by a firearm or is it more serious for Laquan McDonald to be murdered by a firearm?" Gaughan asked from the bench before imposing sentence. "Common sense comes to an easy answer on that in this specific case."
But the petition argues that state law actually makes aggravated battery a more serious offense, and therefore the state Supreme Court should order Gaughan to resentence the ex-patrol officer. The court should also direct Gaughan to determine which of the 16 gunshot wounds caused "severe bodily injury" and sentence him to consecutive prison terms for each corresponding count.
Prosecutors have argued that at least two of the wounds caused that kind of injury, which, the petition contends, means Van Dyke should face a minimum sentence of 18 years: six years for each of those two wounds, plus six more years for the other 14 counts. An aggravated battery with a firearm conviction carries a sentence of six to 30 years in prison.
But even if Gaughan is ordered to resentence on the aggravated battery counts, he could impose the same sentence or even a lighter one if he finds that only one gunshot caused severe bodily harm, according to Robert Loeb, a longtime defense attorney who teaches at DePaul University College of Law. In that scenario, he could potentially give Van Dyke just six years.
"Conceivably he might find a way to say that only one shot caused the bodily harm," Loeb said. "Probably it's more likely that there would be a finding of more than one shot causing the requisite harm and therefore a higher sentence."
Inmates convicted of aggravated battery with a firearm must serve at least 85 percent of their sentences _ far higher than the 50 percent required by a second-degree murder conviction.
Van Dyke's attorneys may file an objection to the prosecutors' filing within seven days, unless the higher court sets a different deadline. The Supreme Court is not obligated to accept the prosecutors' petition, and there is no time frame in which it must issue a ruling if it does.
Van Dyke's appellate attorneys said the prosecutors' petition is an attempt "to turn the Illinois Supreme Court from a deliberative body into a political battleground."
"The filing also opens up a Pandora's box of legal issues that, in the long term, could result in grossly excessive, unjust sentences for defendants that follow in the wake of this request," said a statement from attorneys Darren O'Brien and Jennifer Blagg.
After the attorney general's office last month announced it was conducting a "review" of the sentence, Van Dyke's trial attorney, Daniel Herbert, blasted the decision as politically motivated _ an allegation Raoul on Monday said was "nonsense."
"It's in the interest of justice that the law be followed, no matter who the defendant and who the victim is in a particular case," he said at a news conference. "I'm not going to opine on my opinion on the length of the sentence. What I will opine on is whether or not the law should be followed, and I believe the law should be followed."
McMahon, who had initially requested a sentence of 18 to 20 years in prison, told reporters after the sentencing that he accepted the judge's decision.
On Monday, he said he is still satisfied with the sentence, but after considering the legal basis of Gaughan's ruling, he thinks the challenge is appropriate.
"As we have had an opportunity to step back and kind of evaluate both the law and how the sentence was imposed, we have the benefit of some time and counsel in working with the attorney general's office," he said. "I think the bigger message in this case is to make sure that the sentence that is imposed is a sentence that is lawful."
Van Dyke, 40, shot McDonald in October 2014 as the 17-year-old walked away from police on a Southwest Side street while holding a knife. Graphic police dashboard camera footage of the shooting _ ordered released by a judge more than a year 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 last fall ended in a historic guilty verdict, making him the first Chicago police officer in half a century to be convicted of murder for an on-duty incident.