Thanks to some who emailed me, it appears that Illinois is an outlier in its first degree murder laws.
In order to prove that the defendant committed first degree murder, the prosecutor must show beyond a reasonable doubt that the defendant killed an individual without lawful justification and either:
* Intended to kill or do great bodily harm to that individual (or knew that the act would do so); or
* Knows that the acts create a strong probability of causing death or great bodily harm to the individual; or
* The defendant was attempting or committed a forcible felony other than second degree murder (i.e. rape).
In other words the prosecutor has an easier job here than she would in most states. It seems pretty self-evident that Jason Van Dyke meant to kill Laquan McDonald. I still think the highest murder charge is potentially overkill in this case, but at least the state does not have to prove premeditation.
In addition, second-degree murder is a lesser-included offense, so nothing at this point prevents the prosecutor from going after Van Dyke for both (or just second degree) if s/he’s not sure s/he has presented enough evidence to convince a jury of first-degree.
Uhhh…really? Maybe the first round was a mistake. What about the next one? The one after that?
How could a uniformed officer not know his actions would “create a strong probability of causing death or great bodily harm to the individual”?
As I said in the other thread, think about this: one of the most prominent Latina politicians in Chicago fails to drop a dime with that video on Rahm’s cover-up ass so that Chuy Garcia could win the primary and hence be the next mayor.
Ask yourself what she had to get for doing that.
The Thin Black Duke
@BGinCHI: Thirty pieces of silver?
I don’t see how you think Illinois is an easier lift here given that, as you say,”The defendant was attempting or committed a forcible felony other than second degree murder (i.e. rape).”
I’ve been transcribing court/legal transcripts for over 30 years, mostly for Massachusetts courts but about a dozen other states as well, and that piece actually seems to make a first-degree conviction more difficult. In MA, that prong is not required. The difference between first and second-degree is intent. Having to prove the defendant was ALSO engaged in a seperate felony at the time of the murder makes a conviction much less likely.
It also appears that second-degree murder in Illinois is just first degree murder with one of two mitigating factors–either a sudden and irresistible state of passion created by provocation by the intended victim or else a genuine belief that you were defending yourself or another that was objectively unreasonable.
The accused bears the burden of proving mitigating factors, so, unless I’m missing something, in order to charge second degree murder, the prosecution would basically have to stipulate to the existence of a fact the defendant bears the burden of proving in the indictment. And D.A.’s just don’t do that. (Shit, no lawyer does that. Stipulating to the other side’s defenses in a pleading is practically malpractice.)
Which basically means that in Illinois, they’re always going to charge first degree murder, every time.
@DCrefugee: I edited that shortly after publishing the post to make it more clear.
@JasonF: See my previous comment. If the D.A. establishes the elements of first degree murder, Van Dyke will bear the burden of establishing mitigating factors–i.e. an unreasonable belief his life was in danger–that will allow the jury to convict of second degree murder. This will be the same evidence he’ll be introducing to show the shooting was justified.
Meaning that the entire case turns on whether the jury a) believes he believed his life was in danger and b) believes that belief was objectively reasonable under the circumstances. And Van Dyke will bear the burden of proof on those issues.
Or at least that’s the theory. In fact, everything, literally everything, depends upon how hard the D.A. tries to ferret out authoritarian closet racists and keep them off the jury and whether they succeed. If that effort fails, it’ll be a hung jury or another jury nullification acquittal.
As someone whose livelihood occasionally requires me to represent persons accused of murder, I want to clear up a few misconceptions. I do not practice in Illinois, so Illinois law may be at variance with the norm, but . . .
First, as JasonF points out, the top count of Murder I includes lesser gradations of murder and probably some forms of manslaughter. A prosecutor is generally free to amend the charge up to the point at trial when the state rests. Even if the prosecutor fails to amend from Murder I, the charge is not set until the jury instructions are read and the jury is charged by the judge. Jury instructions are quite often where cases are won and lost, and both sides have an opportunity to request instruction on a lesser included offense. Further, a judge generally has the authority to instruct and charge the jury on a lesser included offense at her discretion.
Generally, Voluntary Manslaughter is not a lesser included in Involuntary Manslaughter. On the other hand, I know of no state where Murder does not include both forms of Manslaughter. Prosecutors are not required to charge every single offense imaginable — the charges need only be specific enough to adequately advise the defendant of the most severe form of the charged conduct. Defendants are presumed thereafter to have notice and knowledge of their potential criminal liability for any lesser offense.
The second point I want to clarify is the idea of “premeditation.” Premeditation is a vestige of the common law that has largely been either written out of murder statutes by the legislature (as is the case in Illinois) or rendered meaningless by judicial rule. While lack of premeditation may work as a defense for John Grisham characters or Perry Mason, in a real courtroom the jury is likely to be instructed that “there does not have to be any appreciable period of time during which the decision to kill was considered, as long as it was reflected upon before the decision was made . . . .” Since intent can be inferred from the act, courts have found that premeditation can be more or less simultaneous with the act of killing. For example, the act of drawing a gun from a holster has been deemed adequate to demonstrate premeditation.
There is plenty about Alvarez’ handling of the Van Dyke case to criticize, but there is nothing wrong with the charging decision.
@karen marie: It’s either number one, OR number two OR number three, not AND.
@BGinCHI: Depends on where she’s from and where he’s from. Hispanic/Latino are very broad terms covering a very large demogrphic slice of the American pie. And just having a Hispanic last name is no guarantee of solidarity. To wit: how easy Cubans and Puerto Ricans have it over Mexicans and Salvadorans in relation to immigration.
I’m so beyond trusting a jury on this one, especially as it’s impossible not to suspect they’ll go venue shopping.
there are so many questions
1. where’s the original 9-1-1 call
2. who is the officer on the Burger King tape erasing the Burger King tape
3. who told him to do it.
4. is it SOP for the CPD to erase footage
5. if you didn’t see the video, then why approve a 5 million dollar settlement
6. how many OTHER tapes are you currently trying to suppress from coming out
like I said…so many questions…
@oz29: That does make the Servin case far more suspect, though… Perhaps Alvarez went for Murder 1 because Servin was acquitted of involuntary manslaughter and she needed something that had a better chance of sticking?
@boatboy_srq: I don’t know enough about the Servin case to say what happened. Without reviewing discovery, I couldn’t say whether Murder or even Involuntary Manslaughter was a makeable case. There are a lot of factors that go in to charging decisions — everything from the elements of the offense, to the relative flakiness of a given witness, to who-knows-what. I once had a prosecutor decline to pursue the death penalty in the torture-killing of an infant because he was less than a year removed from a capital case and the county didn’t have the money for another. On a lighter note, another prosecutor dismissed Minor in Possession of Alcohol case because the kid wasn’t drinking Keystone, and she once stated that if ever there was a kid who got caught drinking anything else, she wouldn’t prosecute them.
As a general matter, I would say that prosecutors — if they are so inclined — have far more subtle and far more definite ways of tanking a case than via charging decisions. The two prosecutors in the Darren Wilson case demonstrated a few of those techniques, albeit in a grand jury proceeding.
@karen marie: What you are describing is only required if the defendant is charged under the Felony-Murder doctrine.