Chicago Jury Convicted Jason Van Dyke of Second-Degree Murder: Could it be Overturned on Improper Venue Grounds?

written by Amy N. Walendziak

 

On October 5, 2018, a Chicago jury convicted former police officer Jason Van Dyke of second-degree murder for the fatal shooting of Laquan McDonald in 2014. However, the legal battle surrounding McDonald’s death is far from over, as Van Dyke’s lawyers intend to appeal his conviction. The issue of venue is likely to be appealed in this case.

Background

On October 20, 2014, police officers received a report that someone with a knife was breaking into cars in a parking lot near South Pulaski Road and 41st Street in Chicago, Illinois. Officers pursued 17-year-old Laquan McDonald, who was seen in the location. McDonald allegedly refused to stop when officers ordered him to do so. Officer Van Dyke arrived on the scene, and, within six seconds of his arrival, repeatedly shot McDonald, continuing to shoot after he fell to the ground. Autopsy reports revealed that McDonald was shot sixteen times.

On November 24, 2015, just over a year after the shooting, Van Dyke was charged with first degree murder for killing McDonald in Cook County. On August 3, 2018, Van Dyke’s defense attorney moved for the trial to be held outside of Cook County, arguing that Van Dyke would be unlikely to receive a fair trial because of intense publicity that had surrounded the case. He presented the results of a study by a defense expert indicating that a majority of those polled believed Van Dyke was guilty. The judge delayed ruling on the motion until after jury selection.

The trial took place over four weeks, with jury selection beginning on September 10, 2018. Over the course of two and a half days, 54 potential jurors were questioned. Testimony began on September 17. The prosecution presented its case over four days, and the defense presented its case over five days. Closing arguments took place on October 4, and the jury deliberated from October 4 to October 5. On October 5, the jury returned a verdict, finding Van Dyke guilty of second-degree murder and sixteen counts of aggravated battery with a firearm, and not guilty of official misconduct.

Van Dyke is scheduled to return to court on October 31 for a hearing, during which his attorneys will file post-trial motions and the date for his sentencing will be set. His attorneys have indicated that they intend to appeal his convictions. Given the pre-trial discussions of venue, it is likely that Van Dyke’s attorneys will appeal the judge’s ruling on venue.

Venue for Criminal Trials

In Illinois, criminal prosecutions take place in the county where the crime was committed. A defendant may move to change the venue if “there exists in the county in which the charge is pending such prejudice against him on the part of the inhabitants that he cannot receive a fair trial in such county.” On appeal, a court’s decision to deny a motion for a change of venue will be upheld unless there is an abuse of discretion. When making this determination, appellate courts determine whether the defendant received a “fair and impartial trial” despite any potential for prejudice.

Illinois appellate courts consider many factors when determining whether a defendant faced undue prejudice in a particular county. These factors include the pretrial publicity, specifically the amount of publicity surrounding the case, the time that passed between pre-trial publicity and the start of trial, and the inflammatory nature of any publicity. Given the nature of today’s media, it is difficult to find jurors that have never heard of high-profile cases. It is important to consider other factors in addition to publicity when determining if the defendant received a fair trial.

Appellate courts will also review the selected jurors and the nature of the jury selection. A conviction is unlikely to be reversed based on venue if the jurors unequivocally indicated that they would remain unbiased despite any prior knowledge of the case. Illinois courts have also considered whether the defendant used all of his peremptory challenges. In a similar case involving a murder charge, the court upheld a conviction because the defendant did not exhaust his peremptory challenges.

Venue in this Case

Van Dyke’s lawyers argued that it was impossible for Van Dyke to receive a fair trial in Cook County. After the release of the officer camera video, the trial received a great deal of publicity both within the city, and throughout the country. Further, a defense expert polled potential jurors and found that 74% percent of people polled believe that Van Dyke was guilty.

Prosecutors for the state argued the defense’s study was skewed and offered its own study, indicating that 3.4 million people in the county could serve as unbiased jurors. Additionally, Van Dyke’s attorneys only used five of their peremptory challenges during jury selection, so there were no jurors selected after exhausting peremptory challenges.

The appellate court will have to perform a careful balancing test when determining whether Van Dyke received a fair trial. Given that the defense did not use all of its peremptory challenges, and that jurors indicated that they would remain impartial and listen to the trial evidence, the state will have a strong argument on appeal. However, the defense will likely argue that the type of publicity surrounding this trial is much more prejudicial than past publicity. Several Illinois cases upheld murder convictions in rural towns after local newspapers and media stations covered the trials. Van Dyke’s attorneys will likely distinguish the scope and nature of this case’s publicity from those earlier cases.

Conclusion

While it will likely be some time before an appellate court rules on Van Dyke’s appeal, the issue of venue will be a determining factor in whether Van Dyke’s conviction is upheld.


Sources

Andy Grimm, Here are the critical legal questions looming now for Officer Jason Van Dyke, Chi. Sun Times (October 5, 2018).

Judge Delays Ruling on Location of Laquan McDonald Murder Trial, CBS Chi. (August 3, 2018).

Laquan McDonald: A Timline of the Shooting, Fallout, And Officer Van Dyke’s Trial, CBS Chi., (September 4, 2018).

Mitch Smith, We Just Didn’t Buy It’: Jury Was Unswayed by Officer’s Story in Laquan McDonald Case, N.Y Times (October 6, 2018).

Mitch Smith, Timothy Williams, & Monica Davey, Jason Van Dyke Killed Laquan McDonald in 2014. Now Chicago Awaits a Verdict, N.Y. Times (October 4, 2018).

People v. Friday, 598 N.E.2d 302 (1992).

People v. Grover, 417 N.E.2d 1093 (1981).

What You Need to Know About the Jason Van Dyke Trial, NBC Chi. (October 4, 2018).

720 Ill. Comp. Stat. Ann. 5 / 1-6 (West 2013).

725 Ill. Comp. Stat. Ann. 5 / 114-6 (West 1982).

Sixth Circuit Court of Appeals Determines Clean Water Act Exempts Nonpoint-Source Pollutants

Written by Jenilyn M. Brhel

 

On September 24, 2018, the United States Court of Appeals for the Sixth Circuit reversed a District Court order that required the Tennessee Valley Authority to remove deposits of coal ash from one of its power plants, finding that the Clean Water Act does not apply to pollutants that reach protected waters via “hydrologically connected” groundwater channels.

Background

In 1972, Congress passed the Clean Water Act, establishing protocols for the regulation of water-based pollutants in order to “restore and maintain. . . the Nation’s waters.”

Tennessee Valley Authority (“TVA”) is an electricity provider for approximately 565,000 households in the Nashville, Tennessee region. The company runs several coal-fired plants, one of which is located along a part of the Cumberland River called Old Hickory Lake, a reservoir and recreational destination for millions of people each year.

At its plants, TVA produces waste byproducts known as coal combustion residuals (“CCRs”). CCRs contain carcinogens such as arsenic. The CCRs are treated through a process known as “sluicing”, in which water is mixed with coal ash and allowed to settle in on-site ponds.

TVA treats its CCRs at a series of unlined ponds known as the Complex. The Complex is located on a karst terrain adjacent to the Cumberland River under which sinkholes, fissures and caves create conduits through which groundwater easily flows. These nooks and crannies allow CCRs from the Complex’s unlined ponds to leak into groundwater that flows through the karst terrain and into the Cumberland River.

Pursuant to effluent limitations and other protocols established by the CWA, the Environmental Protection Agency issued a permit to TVA that allows the company to discharge not all, but some of its “sluiced” coal combustion wastewater directly into the Cumberland River via a pipe called Outfall 001.

Issue

The plaintiffs, two conservation groups from Tennessee who enjoy Old Hickory Lake as a recreational destination, filed suit on April 14, 2015. They did not contend with TVA’s permitted CCR direct discharge through Outfall 001, but rather argued that the company was in violation of the CWA because of CCR leaks entering Old Hickory Lake via “hydrologically connected” groundwater channels originating from the Complex’s coal ash ponds.

The court rested its decision on its interpretation of the CWA’s distinction between point-source and nonpoint-source pollutants. The precise statutory language in question defined the discharge of a pollutant as “any addition of any pollutant to navigable waters from any point source.”

The plaintiffs argued that the meaning of the statute encompassed pollutants entering the waterway through “hydrogically connected” channels, arguing that because the pollutants entered the river through leaks in the lined ponds, the ponds should be considered a point source.

TVA argued that the meaning of point-source was limited to direct discharges, like those of Outfall 00, and that the statute did not mean to include the migration of pollutants through groundwater.

Ruling: Pollutants Must Have a Point-Source

The District Court for the Middle District of Tennessee found for the plaintiffs and ordered TVA to excavate the coal ash in the Complex and remove it to a lined facility.

The Court of Appeals for the Sixth Circuit reversed the District Court’s decision, finding that a pollutant must be placed directly into a protected water through a specific and identifiable point source. The court focused on the language of the statute regarding “discernible, confined and concrete conveyance(s).” It found that groundwater does not constitute a nonpoint-source conveyance and that karst-related leaks did not violate the provisions of TVA’s permit. The Court further stated that any regulation of pollutants through nonpoint-source conveyances does not come under the purview of the CWA.

Dissent Finds Distinction Arbitrary

The dissent argued that the law could be easily circumvented as defined by the majority. The contention is that if the statute of the language meant that pollutants must come from a direct point source, then companies could circumvent the law simply by arbitrarily moving their drainage pipes a few feet away from the water so that they are not feeding “directly” into it.

Looking Ahead

While the Court ultimately recognized that the pollution presented a significant environmental issue, it opined that the Clean Water Act was not the proper tool to address the problem.

However, both the Fourth District and the Ninth District have ruled to the contrary in recent decisions, finding that an intermediary like groundwater does not necessarily defeat liability. These differences in opinion raise the question of whether a case like this might soon end up at the Supreme Court of the United States.


Sources

33 USCS § 1251.

Arsenic, Nat’l Inst. of Envtl. Health Scis. (last visited Sep. 30, 2018).

Coal Ash Basics, U.S. Envtl. Prot. Agency (last visited Sep. 30, 2018).

History of the Clean Water Act, U.S. Envtl. Prot. Agency  (last visited Sep. 30, 2018).

Kenneth Hall, Federal Appeals Court Overturns Tennessee Coal Ash Cleanup Order, JURIST,  (last visited Sep. 30, 2018).

Old Hickory Lake, US Army Corps of Eng’rs,  (last visited Sep. 30, 2018).

Tenn. Clean Water Network v. TVA, No. 17-6155, 2018 U.S. App. LEXIS 27237 (6th Cir. Sep. 24, 2018).

Photo courtesy of Southern Environmental Law Center.