Prosecutors lay out potential path for Van Dyke to avoid virtual life sentence for Laquan McDonald slaying

When a Cook County judge decides former Chicago police Officer Jason Van Dyke’s fate later this week, prosecutors will not be pushing for the ex-patrolman to spend the rest of his life in prison for killing Laquan McDonald, according to court documents filed Monday.

Just a few hours after special prosecutor Joseph McMahon indicated he would not take a hard-line position at sentencing, Van Dyke’s defense team filed dozen of letters begging the judge for leniency. The filing including emotional letters from his two school-age daughters to Judge Vincent Gaughan.

“I have been bullied at school about what has happened,” Van Dyke’s 12-year-old daughter wrote. “Kids come up to me and say that my dad is a murderer. That hurts so much when people say that to me. My dad is not that.”

Under the state’s labyrinthine sentencing guidelines, some experts believe Van Dyke could be eligible for a minimum 96 years in prison at his sentencing Friday. A jury convicted him last fall of second-degree murder and 16 counts of aggravated battery — one count for each bullet that riddled 17-year-old McDonald’s body after refusing police orders to drop a knife.

In his court filing, though, McMahon gave his blessing for a sentence that could restore Van Dyke’s freedom while he’s still young enough to rebuild his life. While outlining a way for Van Dyke to be sentenced to as little as 18 years in prison, McMahon did not make a specific recommendation as to how many years the ex-officer should be incarcerated.

By contrast, the defense filed court documents seeking probation.

The final decision rests with Gaughan, a veteran jurist who has given no public indication of how he will structure Van Dyke’s punishment.

Both the defense and prosecution filings reflect the unique nature of the case given that Van Dyke, a longtime public servant, has no previous criminal record. The defense argued police officers face difficult circumstances in prison, a point McMahon also has acknowledged in the three months since Van Dyke’s conviction.

Police officers are often segregated from the prison population for their own safety, though studies have shown long-term isolation to be detrimental to inmates. Van Dyke has been in solitary confinement in the Rock Island County jail — rather than in Cook County — since October in order to better protect him.

To bolster their probation request, Van Dyke’s defense team filed dozens of letters written by Van Dyke’s friends and relatives, including his wife, daughters and parents. The filing also included several form letters addressed to Gaughan seeking leniency from those identifying themselves as registered voters.

At 77, Gaughan is not expected to run for retention when his term expires in 2022.

Van Dyke’s youngest daughter describes how she has nightmares and cannot concentrate at school. His 17-year-old daughter, who said she has struggled with depression since the trial, wrote that she cries herself to sleep each night wondering if her father has enough blankets and food in prison.

The eldest daughter wrote she last kissed or hugged her dad on the day of his conviction in October.

“Now I touch his hand through a piece of dirty glass and speak through a phone where the connection breaks in and out,” she said.

His wife, Tiffany, described Van Dyke as a kind and courageous man who has been unfairly condemned by the media. She told the judge her family has been punished enough.

“Please find it in your heart to consider the punishment already endured by him that will continue for the rest of his life,” she wrote. “There was no malice, no ill intent or hatred on that fateful night when my husband was faced with a split-second decision. He believed he was making the right choice that night.”

Prosecutors object to probation, saying the law does not allow for it in aggravated battery cases. Their court filing also states that such leniency would “deprecate the seriousness of the offense.”

However, the prosecution’s 13-page memorandum does provide the judge with a way to sidestep a life-ending sentence for Van Dyke if he so chooses.

While prosecutors want Van Dyke sentenced for the aggravated battery charges — the more serious crime under Illinois law with a minimum six-year prison sentence — McMahon told the court that Van Dyke does not necessarily have to serve all 16 counts consecutively.

Instead, prosecutors contend the judge can determine which shots caused “severe bodily injury” and order Van Dyke to serve only those counts consecutively.

At trial, the defense repeatedly argued that only two bullets — one to McDonald’s chest and another to his neck — were fatal. If the judge agreed with that position, prosecutors argue Van Dyke would face a maximum 18 years in prison — six for the neck wound, six for the chest shot plus six years for the remaining, non-fatal shots.

Under that scenario, Van Dyke would be eligible for parole after 15 years. He would be 55.

The defense argues Van Dyke should be sentenced only for the second-degree murder charges because the battery charges stem from the same criminal act. Illinois courts, however, have ruled that aggravated battery takes precedence over the second-degree murder charge since it is the more serious crime.

sstclair@chicagotribune.com

mcrepeau@chicagotribune.com

Twitter @stacystclair

Twitter @crepeau