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Prosecutors seek new sentence in Laquan McDonald case

Illinois Attorney General Kwame Raoul and the special prosecutor Joseph McMahon, said they believe Judge Vincent Gaughan improperly applied the law last month when he sentenced Jason Van Dyke to 6 years and 9 months in prison.

Attorney General Kwame Raoul, left, and Kane County

Attorney General Kwame Raoul, left, and Kane County State's Attorney Joseph McMahon speak during a news conference Monday, Feb. 11, 2019, in Chicago. Raoul and McMahon, who won the conviction against Jason Van Dyke, said they believe Judge Vincent Gaughan did not properly apply the law when he sentenced Van Dyke to six years and nine months in prison. In a rare move, they filed a request with the Illinois Supreme Court seeking an order that would send the case back to Gaughan for a new sentence.  Photo Credit: AP/Noreen Nasir

CHICAGO — Prosecutors on Monday asked Illinois' highest court to review the less than seven year prison sentence for the white Chicago police officer who was convicted in the shooting death of black teenager Laquan McDonald.

Illinois Attorney General Kwame Raoul and the special prosecutor who won a murder conviction against former officer Jason Van Dyke, Kane County State's Attorney Joseph McMahon, said they believe Cook County Judge Vincent Gaughan improperly applied the law last month when he sentenced Van Dyke to six years and nine months in prison. In a rare move, Raoul and McMahon filed a request with the Illinois Supreme Court seeking an order that would send the case back to Gaughan for a new sentence.

"This is the first step in asking the court to declare that the trial court improperly sentenced Jason Van Dye for the murder and aggravated battery of Laquan McDonald and to order a new sentencing hearing," Attorney General Kwame Raoul said at a news conference.

Monday's court filing was the latest chapter in an ongoing saga that has included massive demonstrations, the firing of the police superintendent by the mayor and the ouster of the county's top prosecutors by voters a few months later. Dashcam video of the shooting released by the city in 2015 showed Van Dyke continued to fire after the 17-year-old McDonald fell to the ground. The sentence was the first imposed on a Chicago police officer for an on-duty shooting in a half century.

It followed a jury's decision in October to convict the officer of second-degree murder and 16 counts of aggravated battery — one count for each bullet fired into McDonald.

Van Dyke's attorneys did not immediately respond to requests for comment Monday but planned to hold a media availability later in the day.

The central issue in the petition is an Illinois law that allows a judge to sentence a person for only the most serious crime when he is convicted of multiple crimes for what amounts to a single act. Gaughan determined that second-degree murder was the more serious crime, even though it carries a lighter sentence than aggravated battery — between four and 20 years in prison versus six to 30 years in prison.

Both Raoul and McMahon steered clear of saying whether they believed the sentence handed down by Gaughan was too short, but their filing sets in motion a legal battle that could ultimately result in the court forcing the judge to impose a longer sentence.

In a brief he filed before sentencing, McMahon sought a sentence of at least 18 years in prison, arguing that even if the judge determined that just two of the 16 bullets that struck McDonald caused "serious bodily injury" the law clearly states that the minimum sentence had to be 18 years.

Many legal experts say Gaughan was wrong and have pointed to a 2004 Illinois Supreme Court ruling in which a majority of justices concluded that aggravated battery is the more serious charge because it has a higher sentence. In fact, of the two charges, only aggravated battery with a firearm carries a mandatory prison sentence. A judge can place a person convicted on second-degree murder on probation, something that Van Dyke's attorneys sought.

Prosecutors cannot directly appeal a sentence but are seeking what is called a writ of mandamus, which can result in an order from the Illinois Supreme Court telling a judge to adhere to the correct law.

"This is the only way for us to challenge the legality of a sentence," McMahon told reporters Monday.

Absent a new sentence and with credit for good behavior, Van Dyke will likely serve only approximately three years.

In one of his first moves after taking office in January, Raoul announced he would review the sentence Gaughan had handed down just days earlier.

Raoul bristled when asked Monday whether politics played a role in his decision, as was suggested by one of Van Dyke's attorneys when Raoul announced he was evaluating the case.

"This is not a political question," he said. "This is a question of law."

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