CHICAGO _ After nearly three years at the center of a legal and political firestorm, Chicago police Officer Jason Van Dyke faces a crucial decision.
The attorneys representing him on murder charges in the killing of 17-year-old Laquan McDonald plan to wrap up their case this week. But before they do, Van Dyke must decide whether to take the witness stand.
"It is very hard to win a self-defense case if the defendant does not testify," defense attorney Sam Adam Jr. said. "If he's willing to go for a lesser included (charge) like second-degree murder, then maybe they've already done enough and you don't put him on the stand. But if he wants a straight not guilty, he needs to tell his side of the story to the jury."
Conventional wisdom suggests that a defendant should stay away from the stand, preserving his Fifth Amendment right against self-incrimination and eliminating the risk of a tough cross-examination. But Van Dyke's murder trial has been far from typical.
Van Dyke, 40, faces two counts of first-degree murder, 16 counts of aggravated battery and one count of official misconduct for the October 2014 shooting. Police dashboard camera video released by court order showed Van Dyke opening fire within seconds of leaving his squad car as McDonald, holding a knife, appeared to walk away from police.
As prosecutors have repeatedly played the dashcam video for jurors, Van Dyke's attorneys have hammered on the idea that only the defendant's perspective matters in this case. It has become such a common refrain _ even a former police firearms instructor made a reference to it _ that some legal experts say the officer is almost obligated to take the stand to explain what he saw and how he felt each time he pulled the trigger.
"I find it very difficult to get over that hump without saying, 'Yes, I'm Jason Van Dyke, those are the things you heard of, that's what happened ... this is why I fired 16 shots,'" said criminal defense attorney David Gaeger. "And explain to (the jury) how all those things that have been brought up by the defense actually affected him."
But the defense has also presented evidence that could be seen as a substitute for his testimony _ in particular, an animated video purporting to show the shooting from Van Dyke's point of view. And one prosecution witness may have functioned, in essence, as a stand-in for Van Dyke: his partner that night, Joseph Walsh.
Walsh, testifying under immunity from prosecution while facing separate criminal charges in the alleged cover-up of the shooting, testified that Van Dyke had a "reasonable fear" for his own safety when he shot McDonald. He stood in front of the jury box and demonstrated an allegedly aggressive move McDonald made moments before the shooting.
That bolstered a key point for the defense _ that McDonald posed a genuine threat _ and may have made Van Dyke's testimony unnecessary.
"He's testifying from a police officer's perspective to what they were seeing and or feeling at the time," said criminal defense attorney Barry Spector. "Van Dyke (would) say the same thing."
Many experts believe the defense strengthened its argument with an animated video it commissioned to show the shooting from McDonald's perspective. Though the computer-generated version does not fully corroborate Walsh's account _ the animated McDonald does not raise his knife to the officers _ it does show Van Dyke opening fire when McDonald was 13 feet away with a 3-inch blade in his right hand. It will be up to jurors to decide how seriously to take the animation.
"Showing the jury the shooting from Van Dyke's perspective was very important," said veteran defense attorney Terry Ekl. "But I don't think that (animated) video is going to drive the outcome of this case."
Calling Van Dyke as a witness is not without risks. If he testifies, he would be open to cross-examination _ not just about the night he shot McDonald but also potentially his entire employment history, including civilian complaints and civil lawsuits.
Adam believes Van Dyke has an advantage over most murder defendants because, as a police officer, he has spoken in court numerous times and knows what the process entails. He received training on how to be an effective witness and has undergone cross-examinations, albeit never with such high stakes for himself.
"I don't know why you wouldn't put him on the stand," Adam said. "He looks the part. He is the part. You have a professional witness. You need to get up there and sell his story."
