Second Degree Murder, First Degree Murder, Mr. Van Dyke discussed on Steve Dahl
WLS AM dot com. Sentencing hearing, the judge is now speaking effort very short recess we've heard closing arguments. Everybody here has been outstanding. There's a lot of emotion involved in. I understand that both the Liqun McDonald's family and his loved ones and Jason Van Dyke in his family and his supporters in the independent people out there, some call themselves demonstrators, some call themselves protesters, but these are concerned citizens, and they have a constitutional right to be here. But there is no council Tucson right to disrupt the court and effective administration of Justice. So you let me tell you exactly how I feel. I feel so proud of you you've been the example for our not only for our city and our county and our state, but this is going national on TV. So we'll let them see how outstanding individuals citizens of this state of this county another city are that no matter what the verdict is. And I assume that one hundred percent of everybody's going to be disappointed. So and that's my job, and I accept it willingly. So thank you. All right. To begin. First of all we're going to have to go back to win. The jury. To get a little insight into this process and into the reasoning for my. Starting off. I the jury was instructed on first degree murder. And the beginning of the instruction was staying either the charge of first degree murder or the charge of second degree murder. The state must prove the following propositions. I proposition that the defendant performed X which caused the death of Kline McDonnell and that the defendant did so he intended to kill a do of a Bali harm to the crime McDonald. Or he knew that such edge what caused that to look wine McDonald or knew that such x created a strong probability of death or great bodily harm to LeBron McDonnell and third proposition that the defendant was not justified in using the force. Then the next operative paragraph is you may not consider whether the defendant is guilty of the lesser offense second degree murder until and unless you have I determined that the state has proved the above propositions beyond a reasonable doubt. What that means is first of all there has to be proved beyond a reasonable doubt. That first degree murder was committed. That is the foundation that second degree murder consideration has to be laid up. We're not moving any place until the jury came back with the jury with the decision that each and every element of first degree murder has been proven. Then according to professor Clint Richard clink instead of the common definition of lesser offense. Second degree murder is first degree murder. Which is the superior charge, plus mitigating factors. So comma definition of a lesser offense is that it requires less proof in this case. The supreme court in the state legislature has the right to use what nomenclature they want. They consider second degree murder a lesser offense. So this is where we have to get before we start analyzing different propositions. But again, you have to understand that to get the second degree murder consideration. What's the jury didn't came back with the verdict of second degree murder? The condition preceding to even consider the issues are that there has been a finding of first degree murder and each and every element of that finding has to be proved beyond a reasonable doubt. Now moving on. People versus Lee, which is the supreme court has the coded quite a bit into the very instructive case concerning second degree murder and also aggravated battery charged with fire Justice, Robert, I usually Justice Thomas in that case of the supreme court frame the issue, which I think is important here and are all aggravated battery with a firearm cases are crimes more serious than the offense of all second degree murder cases as a matter of law while it goes through this. Let me just remind you this continuing live coverage of the sentencing hearing for Jason Van Dyke euless judge Gon who's gonna rule and sentenced, Jason daycare imminently. It's a packed courtroom. And there's a heavy law enforcement presence in the courtroom right now. And if you look it's we use a common Loma glacier. That second degree murder is a class one felony. Actually, it is a super class one felony the state legislature decided to increase the penalty on second degree murder by thirty three percent instead of four years to fifteen years in state penitentiary with two years mandatory supervised release they increase the two four to twenty years in the state penitentiary along with the other provisions of probation, etc. But looking at that. And then Justice Thomas's analysis of the penalties. They his finding were that they overlap because you have the four to twenty six to thirty. So that would lead to the conclusion or to support the conclusion that you have to analyze these cases on a particular case by case basis in the facts in each individual state case controls and to analyze those facts and to compare which is the more serious offence. And these are case specific decisions. No general proposition is being issued from this court. This only applies to the case of the murder of Klein McDonnell. So you have to look at the sentences, and once there is this overlapping, we don't have a computer to do that we have to have a trial judge to look at that to determine which would be the more appropriate sentence for aggravated battery with a firearm or second degree murder. Back in nineteen eighty seven our state legislature enacted the crime of second degree murder two years later, while it was July a little bit more than two years later, they enacted the crime of aggravated battery with a fire at that time, we have to presume and certainly our state legislature knew the difference between these two crimes, and certainly the aggravated battery with a firearm came in one thousand nine hundred eighty nine if they wanted to eliminate the certainly had the power to they could say in cases of where there's a finding both second degree murder and aggravated battery with a firearm. There is no second degree murder and accused or convicted convicted must be sentenced on the aggravated battery with the fire just to take a couple examples if someone was shot in the baby finger by a fire, unjustly and all the elements of aggravated. Dot battery with a firearm where there that would be the crime of aggravated battery with a fire again, if someone was shot in the baby toe by a firearm, unjustly and all the elements of aggravated battery with a firearm have been proven, those are egg invaded battery with a firearm cases. The thing evaluate especially case specific is here is it more serious for the clan MacDonald shot by a firearm. Or is it more serious for clan MacDonald be murdered by a fire? Comes to easy answer on that in this specific case, therefore, my findings are that. I will sentence Mr. Van Dyke on the second degree murder count. Again, applying justices Thomas's reasoning I find that the lesser offense in this particular case, and of facts is the aggravated battery with a firearm just as an aside all those shots were done within a range of any place from fourteen so many seconds, but less than thirty seconds at the most. So I consider that one act so they would all merge, but I'm not going to enter judgment on that as Illinois requires that one AC one-sentence went crime. So therefore, there'll be no judgment entered in on the aggravated battery with a firearm. I'll enter judgment on a second degree murder. Call now again, anytime it gets easy for a human being the sense another human being debt Uman being whether it's a judge or if determined and a death penalty case the jury they should get out of the business. All right. So this is not pleasant and this is not easy. But this is some kind of a profession that I chose and I'm not complaining about it. But I certainly have to take into consideration all the feelings that are involved here today engineering throughout the whole trial. And I want to compliment the lawyers here just I don't have the exact figures, but initially the amount of information that they had was five hundred thousand emails, maybe more than one hundred thousand pages of discovery look lawns. DCF files were in the neighborhood of about eight thousand seven hundred people that have been here, you wonderful people during the trial node, the expert witnesses the reports that have been. Filed the motion settlement. So both sides have done such a tremendous amount of work in a very professional. I want to compliment though. Now moving on. You've been here today. And you've seen the impact that this. I mean this crime and has had on climate, Donald and his family you seen the impact on. The van dykes and their family the children. That's the shame. The family are suffering tremendous amount of pain during this along with Lochlann. Mcdonald's family and loved ones, and I've sat here time and time again along with my brother judges that are here in this courtroom. And it's just so senseless that these X occur because you can see the pain on both sides of the family. And I think Mr McMahon said in closing arguments in the case chief, this is a tragedy for both sides. So this is not easy. And I don't expect it easy. I findings are inappropriate sentence would be eighty one months in the Illinois department of corrections two years. Mandatory supervisory meets MS Van Dyke. You have to. Rights. I have to inform you of one the first right? Did you have a right to me reconsider your sense? That means within thirty days, you'd have to file a written document, call the motion to reconsider in that written document must contain all the reasons why you want me to reconsider your sense if you cannot afford an attorney for that motion. And you wanted to have one in preparation of it, the state would pay for that attorney you understand that right? You have to answer. Yes. Or no. Or you don't know. Okay. The next right? Is you have the right to appeal both the trial and the sentencing again within thirty days, you'd have to file a different written document. And that document is called a notice of appeal if you could not afford the appeal the state would pay for your lawyer would pay for your transcripts and all filing fees. If you couldn't afford your appeal you understand that right? Awesome. Thank you. I w short. Well, that's. All right. Six point seven five years. Eighty one months, right? Is that the math so six seven months, so? Yeah, right right areas. So in short recess he's now being taken back into custody. He's in an orange jumpsuit, essentially, there was no outbursts that I saw at least not yet in the courtroom a lot of disappointed faces as I said my opening kind of my opening comments here. It's a tale of two cities in and I've been watching this throughout the entire day. I the prosecution that would bring up their witnesses the McDonald family members, the the Reverend who's is a great uncle made a statement on behalf. Kwon mcdonald? And then the four other quote unquote, victims of abuse. So they say from officer Van Dyke from many years ago, the most recent one I think is four or five years ago. A lot of retired cops ex cops who worked with them also gave testimony in the current F O P president did Kevin Graham, the former F O P president did as well, very very emotional, very very strong testimony. As I mentioned, the judge did allow a lot of leeway. So end result is six six six years nine months, you think John is that about right six years nine months or some mitigating circumstances there? And you heard the judge ASCA Van Dyke if he wanted him to reconsider the sentence. I would imagine. It'll be advised by his defense team. Not to ask the judge to do that again. All right. We're going to catch up on news. We're gonna take a quick break. Then we'll get into the newsroom with Jen and come back and talk O'Brien Brian Warner. He was a former chairman of the Chicago police survivors group he wants to comment on this. We're going to hear from a variety of people who are already in the courtroom today as they make their way out. We're hoping to talk to dean Angelo and the current F O P president about their reaction. Also members the the liquidity McDonald of family and some community activists as well. Right up until seven o'clock complete coverage here on wwl house. What would you do with an extra thousand or two every month? I tend to free class to learn with the Wall Street, boys. Hope you'll never find out Online Trading Academy. Call.