3 officers in court Monday on charges of cover-up in Laquan McDonald death
Former Detective David March testifies about the night of the Laquan McDonald shooting at Officer Jason Van Dyke’s hearing on June 28, 2017, at the Leighton Criminal Courts Building in Chicago. (Nancy Stone/Chicago Tribune)
Three veteran Chicago police officers are expected in court for the first time Monday on charges of covering up what happened the night Officer Jason Van Dyke shot Laquan McDonald — charges that could impact how Van Dyke’s murder case plays out as well, legal experts say.
With the charges hanging over their heads, the three, including Van Dyke’s partner on the night of the shooting, will almost certainly decline to testify on Van Dyke’s behalf at his yet-unscheduled trial in order to avoid possibly incriminating themselves, the lawyers said.
Even potentially worse for Van Dyke, the charges could ratchet up the pressure on the officers to cooperate against him or other officers in hopes of currying lighter sentences, though most of the attorneys consulted by the Chicago Tribune doubted that would necessarily happen.
"Perhaps the biggest effect of the indictment of these three officers would be to chill their availability to testify in the Van Dyke trial if that goes first," said Robert Loeb, a longtime criminal defense attorney who teaches at DePaul University College of Law. "They would have the right to take the Fifth Amendment and decline to testify in the Van Dyke trial."
Detective David March, the lead investigator into McDonald’s shooting, and Officers Joseph Walsh, Van Dyke’s partner, and Thomas Gaffney, another patrol officer at the scene, are scheduled to be arraigned Monday morning at the Leighton Criminal Courts Building on conspiracy, obstruction of justice and official misconduct charges.
The court-ordered release of police dashboard camera video of the shooting — on the same day in November 2015 that Van Dyke was charged with first-degree murder — ignited weeks of protest and provoked a political crisis for Mayor Rahm Emanuel and the Police Department.
The charges allege that the three officers, together with Van Dyke himself, lied to exaggerate the threat posed by the 17-year-old McDonald. The video showed Van Dyke shot McDonald 16 times as the black teen walked away from police while holding a knife.
Gaffney, the only one of the three still with the department when the indictment came down late last month, was suspended without pay.
It is unclear if any other officers could yet be indicted in the alleged cover-up, but special prosecutor Patricia Brown Holmes said in announcing the indictment that the investigation continues.
In a statement issued after the charges became public, attorneys for Van Dyke blasted the indictment, accusing prosecutors of charging the three officers in order to hurt Van Dyke’s chances at trial.
"This new indictment is further proof that the government is determined to prevent Jason Van Dyke from receiving a fair trial by silencing any potential witnesses," a statement from lead attorney Daniel Herbert said.
Attorneys interviewed by the Tribune scoffed at that as motive for the indictment but agreed that the defense likely won’t be able to count on assistance at trial from the three — or possibly any other officers who fear indictment.
Some said the three could feel pressure to testify against Van Dyke in exchange for leniency from prosecutors.
"It’s the opposite of silencing them," said Michael Oppenheimer, a former Cook County prosecutor now in private practice.
"It wouldn’t surprise me at all if this was, ‘Hey, this is a warning shot; we’re coming after you unless you have something to tell us,’" Oppenheimer said. "I think (the officers) have always known or assumed that nothing would happen to them. … Now things have changed a little bit with this case, so hopefully if they’ve done something wrong, or a higher-up has done something wrong, they might flip."
But others said the charges against the three officers aren’t serious enough — probation remains a possibility on conviction — to create the pressure necessary to turn on a fellow officer. And if they did testify against Van Dyke, their honesty and credibility would be sure to be attacked because of their cooperation with prosecutors in exchange for leniency, the lawyers said.
But veteran criminal defense lawyer Edward Genson, who knows Holmes, doubts her strategy in bringing the indictment involves pressuring the officers to testify against Van Dyke. Both investigations are separate and involve different special prosecutors.
"I just don’t think that will happen," Genson said. "I don’t think the prosecutor would indict these three people because they were trying to force (them) to enhance the (Van Dyke) case."
Loeb said the publicity over the indictment of the three officers as well as its allegation of Van Dyke’s involvement in the alleged cover-up "can’t make the Van Dyke defense team happy."
"It’s that much more smoke, whether or not it’s fire," Loeb said.
But attorney Terry Ekl downplayed the impact of pretrial publicity, even in such high-profile cases. Ekl represented a female bartender in a lawsuit over her infamous beating — captured on video — by a drunken, off-duty Chicago cop, Anthony Abbate.
"That video was played around the world … and we had absolutely no problem picking a jury of people who either hadn’t seen it or weren’t influenced by it," he said.
Besides, the attorneys said, Van Dyke’s lawyer will almost certainly let Judge Vincent Gaughan, not a jury, decide the officer’s fate, making pretrial publicity irrelevant.
"I would think the overwhelming probability here is that it’s going to be a bench trial and not a jury trial," Ekl said. "I’m not convinced that these indictments have a great impact on Van Dyke’s ability to have a fair trial."
In the end, Van Dyke’s murder case will likely hinge on his specific actions, not on what his fellow officers did after the the shooting, the lawyers said.
"It still gets back, when it’s all said and done, to what Van Dyke reasonably believed," Ekl said.