Jason Van Dyke sentence petition with the Illinois Supreme Court.
Illinois officials on Monday said they planned to file a petition with the Illinois Supreme Court challenging the legality of former Chicago police officer Jason Van Dyke’s prison sentence.
Illinois Attorney General Kwame Raoul and Kane County State’s Attorney Joseph McMahon, the special prosecutor in Van Dyke’s trial, filed a petition for a writ of mandamus, asking the Illinois Supreme Court to review whether Van Dyke’s 81-month prison sentence was “proper under the law.”
“This is the first step in asking the court to declare that the trial court improperly sentenced Jason Van Dyke for the murder and aggravated battery of Laquan McDonald and to order a new sentencing hearing,” Raoul said.
Raoul said the move is “not an everyday occurrence but neither is it uncommon.”
“As attorney general, with the constitutional and legal duty to represent the people of the state of Illinois before the state Supreme Court, I am convinced that this is my responsibility to file this petition and to work in conjunction with the special prosecutor, State’s Attorney Joe McMahon, to challenge this sentence,” Raoul said Monday.
Judge Vincent Gaughan sentenced former Chicago police officer Van Dyke to nearly seven years in prison last month.
Before deciding on a sentence, Gaughan first had to determine if the case fell under the “one act, one crime” doctrine, allowing Van Dyke to be sentenced on only the more serious of the two crimes he was charged with. Van Dyke was convicted of second-degree murder and aggravated battery in a trial last year.
Prosecutors, citing precedent, argued if Van Dyke was sentenced for only one of the two charges, it should be for the aggravated battery charge, which carried a higher sentence.
Defense attorneys countered that second-degree murder was the appropriate charge, despite the possibility of probation.
Ultimately, Gaughan chose to sentence Van Dyke for second-degree murder, giving him the 81-month sentence.
“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 said while making his ruling.
Raoul’s filing calls on the Supreme Court to direct Gaughan to vacate Van Dyke’s sentence for second-degree murder and instead impose a sentence on each of the 16 counts of aggravated battery with a firearm. The judge would then need to determine which of those counts involved “severe bodily injury,” allowing for consecutive sentences.
“It is important that a police officer was held accountable for criminal conduct,” McMahon said in a statement. “But we argued at the sentencing hearing that Jason Van Dyke should be sentenced for the aggravated battery with a firearm convictions. The ability for the prosecution to challenge a sentence is very narrow, but this might be one of those situations.”
If the petition is accepted by the court, Van Dyke’s attorneys will have seven days to file an objection, unless the court sets a different deadline. There is no timeframe for the court to rule on whether it will accept the petition and consider it.
Van Dyke’s appeal attorneys, Darren O’Brien and Jennifer Blagg, said in a statement the filing “opens up a Pandora’s box of legal issues that, in the long term, could result in grossly excessive, unjust sentences for defendants that followin the wake of this request.”
“The Attorney General’s and Special Prosecutor’s filing today leaves Mr. Van Dyke with no choice but to appeal his conviction, prolonging this tragic case for both his family and the McDonald family,” the statement read.