Chicago cop Jason Van Dyke is on trial for the first-degree murder of Laquan McDonald. Try as he might, Mayor Rahm Emmanuel’s post-Obama White House clout wasn’t enough to keep the video of the killing under wraps, although it was sufficient for Rahm to escape unscathed in the aftermath of recreated history of everything pre-Trump being wonderful.
Van Dyke still faces trial, but he’s got a defense. Despite the video showing that he murdered McDonald like a dog in the street, it appears that Illinois law will permit him a fantasy defense.
At the closed-door hearing, Van Dyke’s defense team is expected to call witnesses who are slated to testify at trial about McDonald’s allegedly violent history and character. In January, Gaughan agreed to let as many as nine witnesses testify on the issue, but he plans to decide at the hearing next week on how much of their testimony he will allow at trial.
There hasn’t been a great deal said about this trial, as Judge Vincent Gaughan has held the reins of secrecy tightly. Sure, the defendant is entitled to a public trial, but when you’re a killer cop who can be seen on video murdering a black kid for absolutely no reason, public scrutiny isn’t your first priority. While there is a public interest as well, it seems the media isn’t very good at taking care of its own.
Gaughan — who announced the move after lawyers for news organizations had left the courtroom after discussions over the release of some sealed court filings — cited concern for the safety of witnesses in closing off the courtroom next week.
That’s an old-school tricky move, wait for the media to file out to the coffee and donut stand, then announce what you don’t want them to know so they can’t raise an objection. As for concern for the safety of witnesses, that’s a perennial claim, yet witnesses testify at trial all the time without the cloak of secrecy because this is America and, in the absence of a specific threat to their safety, we don’t do that. Unless there’s no one to object, of course.
What won’t be open to the public, or the media, will be the testimony of witnesses as to what a horrible and dangerous person Laquan McDonald was. If you’ve got any sense about you, you’re muttering to yourself, “so what?”
Under Illinois law, a defendant making a claim of self-defense can try to include evidence of a victim’s violent reputation or history even if the defendant didn’t know about that history at the time of the alleged crime.
This isn’t, per se, unusual. Any defendant claiming self-defense is entitled to prove the victim’s violent reputation and history, since that’s usually the crux of why the killer acted. Except its utterly irrelevant if the killer knew nothing about it, and doubly irrelevant if there is no hint of threat preceding the killing. Imagine walking up to some random guy on the street, killing him for no discernible reason, and then learning afterward that he had a rep and some history as a bad dude. Free kill?
Gaughan ruled last year that most of McDonald’s juvenile records should be turned over to the defense team after it had unsuccessfully sought the protected files in juvenile court.
McDonald’s records, previously reviewed by the Chicago Tribune for a profile on his life, detail his difficult childhood as a state ward as well as his 26 juvenile arrests and history of psychiatric hospitalizations and medical diagnoses, including post-traumatic stress disorder from childhood abuse and oppositional defiance disorder regarding authority figures.
There are two components to smearing the victim here. The first is to bolster an effort to pretend that there was some basis for Van Dyke to believe that he posed some existential threat. After all, McDonald held a knife in his hands, and those inclined to apologize for any cop killing will remind us of the Tueller Drill, even though it’s got nothing to do with what happened here.
But the more effective use of McDonald’s prior criminal history is to tell the jury that this was a bad dude, a black guy whose life was of so little worth that killing him was nothing to lose sleep over. Let’s face it, nobody likes bad dudes, and aren’t we really better off without them anyway? So what if Van Dyke murdered McDonald by shooting him dead like a dog in the street?
That Judge Gaughan is not only permitting this type of testimony to be introduced, despite the absence of any foundational basis for Van Dyke to make a credible argument that this was self-defense, is disturbing. That the judge will do so behind closed door, however, is far more disturbing.
Gaughan’s decision to hold the testimony in secret marks the first such move in Van Dyke’s case, but it is not unprecedented for the judge. Several pretrial hearings were held in secret in the child-pornography case of R&B singer R. Kelly, who was ultimately acquitted of all charges in 2008.
The McDonald murder case is nothing like that of R. Kelly, but it does reflect Judge Gaughan’s willingness to seal courtrooms in general. In this case, the inflammatory nature of the charges, likely to cause substantial outrage as happened when the video was released, is likely the reason for the judge’s closure. But preventing outrage* at a murder committed by a police officer is the reason why courtrooms are open to the public. People are allowed to be there, allowed to be outraged, allowed to react to a murder by a cop.
And there remains one further question, whether Van Dyke will be tried by a judge or jury. Perhaps the decision will be influenced by how much evidence the defense can offer to smear the dead guy, the bad dude, because otherwise the jury will be left only with that video of Van Dyke shooting McDonald like a dog in the street.
*Note that there is a different about people being outraged and people engaging in criminal conduct, such as rioting, as a result of their outrage. The former is a matter of right. The latter is not. The two should not be conflated.
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