CHICAGO _ In a highly unorthodox move, the Illinois Attorney General's office is "reviewing" former Chicago police Officer Jason Van Dyke's relatively lenient prison sentence, a spokeswoman for the office said Thursday.
"We are going to do a careful review of the record and the law and make a determination based on our review," spokeswoman Maura Possley said in an email.
Possley declined to elaborate on what exactly the office is examining, but legal experts told the Tribune the attorney general may try to persuade a higher court to force a re-sentencing or have state lawmakers reconsider the state's somewhat confusing sentencing laws.
Last week, former Illinois State Senator Kwame Raoul was sworn in as attorney general just days before Van Dyke was sentenced to less than seven years in prison for shooting Laquan McDonald 16 times.
Last fall, a Cook County jury found Van Dyke guilty of second-degree murder and 16 counts of aggravated battery, making him the first Chicago police officer in half a century to be convicted of murder for an on-duty shooting.
Judge Vincent Gaughan sentenced Van Dyke under the less stringent second-degree murder statute, not for the aggravated batteries that could have led to a potentially much longer prison sentence.
The attorney general's office could be considering a challenge to the sentence before the Illinois Supreme Court, possibly arguing that Gaughan sentenced Van Dyke under improper guidelines, said Stephen L. Richards, a veteran criminal defense attorney.
Richards, an appellate attorney who began his legal career as a clerk for the chief justice of the state Supreme Court, could not recall the attorney general's office previously challenging a sentence without the trial prosecutor's encouragement. But as the state's highest-ranking law enforcement officer, Raoul has the authority to do so, he said.
"It's appropriate for Raoul to do it if he feels like an injustice has been done," Richards said. "He almost certainly has standing if he wants to do this."
Other legal experts said it would be unheard of for the attorney general to step in and take the case to a higher court without input from the trial prosecutor.
Special prosecutor Joseph McMahon's office did not immediately respond to a request for comment on the attorney general's announcement, but at last week's sentencing, McMahon sought a prison term of 18 to 20 years for Van Dyke. However, he did not appear likely to challenge Gaughan's ultimate sentence, saying he was satisfied with the overall outcome.
"I understand the sentence is not exactly what the McDonald and Hunter families wanted," he told reporters last week. "But the sentence, like the verdict, does hold the defendant accountable."
But Judge David Erickson, a retired Illinois appellate court justice and professor at Chicago-Kent College of Law, said it would create a bad precedent for Raoul to challenge the sentencing, especially when his predecessor declined to get involved with the politically perilous case.
After the Cook County State's Attorney's office withdrew from the case, state law required Gaughan to first ask the Illinois Attorney General's Office and then the Illinois appellate prosecutor's office to see if they would handle the prosecution. When they declined, Gaughan solicited prosecutors from across the state, and McMahon, the state's attorney in suburban Kane County, was one the only one from the collar counties to raise his hand.
"(Raoul) was not a party (to the case)," said Erickson, who is also a former Cook County prosecutor. "His predecessor turned down the case four years ago. Where is his standing?"
Daniel Herbert, one of Van Dyke's attorneys, blasted the review by the attorney general as politically motivated, accusing Raoul of exploiting "the tragic death of Laquan McDonald for his own political gain."
The office could have filed legal briefs in response to Herbert's arguments at sentencing but chose not to, Herbert pointed out.
"Now he suddenly has concerns after the sentencing in the wake of some public outcry," he said in an emailed statement. "This is about politics, not the law."
In giving Van Dyke six years and nine months in prison, Gaughan made crucial decisions favorable to the defense, most importantly sentencing him under the second-degree murder statute as the defense sought.
Gaughan made that decision despite the fact that convictions for aggravated battery with a firearm are a more serious class of felony than second-degree murder under Illinois law. The judge, though, ruled that common sense dictated that second-degree murder was the more serious crime.
With the decision, Van Dyke avoided potentially consecutive sentences for the aggravated battery convictions. Inmates serving time for second-degree murder also earn day-for-day credit, meaning Van Dyke could be out of prison in about three years.
The sentencing guidelines for the Van Dyke case were particularly confusing, sparking much disagreement among legal experts.
The review by the attorney general's office could be intended as a way to recommend clearer guidelines to the state legislature, said Robert Loeb, a longtime criminal defense attorney who teaches at DePaul University College of Law.
"During the days leading up to sentencing, every lawyer had a different opinion as to how the sentencing law might apply to this case," Loeb told the Tribune. " ... Judge Gaughan had to struggle with the lack of clarity in the law. It's a good thing if the attorney general can prevail on the legislature to clean up these statutes that don't make a lot of sense when a single case has different charges and different sentencing laws."
Following Van Dyke's sentencing last Friday, Herbert told reporters the defense team had not yet decided whether to appeal the conviction.
Van Dyke 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.
