Chicago Officer's Defense Depends On Extent Of Threat

By Joseph Ax and Tom Polansek

NEW YORK/CHICAGO (Reuters) -- The murder case against a white Chicago police officer for killing a black teenager may turn on whether the officer can show that he feared for his life and that firing 16 times was reasonable under the circumstances, criminal defense experts said.

Officer Jason Van Dyke is accused of shooting 17-year-old Laquan McDonald just six seconds after emerging from his patrol car on a street on the southwest side of Chicago on Oct. 20, 2014, emptying his gun’s clip. A graphic video of the killing, captured by a patrol car camera, was released publicly on Tuesday night, 13 months after the shooting.

"What the officer knew at the time – that is your beginning, your end, your alpha, your omega,” said attorney Michael Greene, who in August secured a mistrial for a white police officer in Charlotte, North Carolina, who was charged with killing an unarmed black man.

According to Greene, the core question is: “What did he do that placed you in reasonable apprehension of death or serious bodily injury?"

But even if he can persuade a jury or judge he believed his life was in jeopardy, Van Dyke could still face conviction if his fear is found to have been unreasonable.

Appearing on CNN on Wednesday, Van Dyke’s attorney Daniel Herbert said the officer “truly was in fear for his life as well as the lives of his fellow police officers.”

Herbert did not respond to a request for comment for this story.

PRONE ON THE GROUND

Defense lawyers pointed out that the video shows a considerable distance between Van Dyke and McDonald and that McDonald, who held a knife, did not appear to advance before Van Dyke opened fire.

Sam Braverman, a veteran defense lawyer in New York, also said the fact that Van Dyke fired 16 shots, including several after McDonald was prone on the ground, would make it difficult to argue that his use of force was commensurate with the threat.

"Clearly, this officer went overboard and he abused his authority, and I don't think use of force was necessary," top Cook County prosecutor Anita Alvarez said at a news conference on Tuesday.

Given the nature of the video, Van Dyke may opt for a non-jury trial before a judge who might be less susceptible to an emotional reaction.

While prosecutors in Cook County chose to charge Van Dyke with first-degree murder, Illinois law allows such defendants to be convicted of the lesser charge of second-degree murder.

Under state law, a defendant has committed first-degree murder if he or she acted with intent to kill or do great bodily harm and had no lawful justification. A defendant who believes he or she was legally justified in the killing but whose belief is unreasonable, can be guilty of second-degree murder.

A jury or judge could therefore still convict Van Dyke of second-degree murder if it concludes that, while he might have feared for his life, his feeling was unreasonable given the level of threat.

Braverman said the fact that other officers were at the scene but did not use their guns could undermine the argument that Van Dyke acted reasonably.

“Four other officers standing in exactly the same shoes as the defendant – not one of them fires a shot,” he said.

That said, the defense will try to focus on what the soundless video does not show: what Van Dyke was told on his way to the scene about McDonald, who had angel dust in his system, or what McDonald may have said, for example.

"While a picture is worth a thousand words, sometimes the words can be misleading," said Harvey Fishbein, a New York defense lawyer.

VIEWS CHANGING

Not every expert agreed that Van Dyke is destined for prison. Philip Stinson, a criminologist at Bowling Green State University who studies arrests of police, said he would be surprised if a jury convicted Van Dyke of murder.

Juries are typically reluctant to second guess split-second, life-or-death decisions that police officers make in street encounters, Stinson said.

But Joanna Schwartz, a law professor at the University of California who studies police misconduct, said the uproar over a white officer’s 2014 shooting of an unarmed black teen in Ferguson, Missouri, and other similar incidents had made it less likely police will automatically get the benefit of the doubt.

“There’s a longstanding presumption by prosecutors certainly, and also by jurors, that when officers use force it's justified,” Schwartz said. “But I also agree that post-Ferguson, there has been a shift in the view about police justification.”

(Reporting by Joseph Ax in New York and Tom Polansek in Chicago; Editing by Martin Howell)