Why a dash-cam video of a police shooting might not be a smoking gun

By Mark Guarino December 28, 2015

CHICAGO — As new fatal shootings by Chicago police officers draw anger from critics and continued national attention, the officer at the center of the most notorious incident, Jason Van Dyke, is expected to plead not guilty Tuesday to six counts of first-degree murder.

The key piece of evidence against Van Dyke undoubtedly will be the dashboard-camera video showing him shoot 17-year-old Laquan McDonald 16 times, the majority of shots fired as the teenager recoiled on the street, helpless. It may appear so convincing it seems impossible to believe Van Dyke could avoid a conviction.

But statistics show that officers involved in the fatal shootings of civilians, particularly those who are African American, are rarely convicted in a court trial. And the dash-cam video could actually become the best tool for a defense for Van Dyke, who was charged in November and will be formally arraigned Tuesday.

Van Dyke attorney Daniel Herbert quickly raised questions about the video in November, saying that without audio, viewers cannot fully understand the situation or the reaction of the officer. “The video is clear, but there is a lot of stuff that the video doesn’t show,” Herbert said in an interview on Chicago’s WGN-TV. “You know, distances and glances and movements, as slight as they may be, sometimes are not picked up on video. Because of the fact that video is two-dimensional, it often distorts distances, and . . . distances are critical.”

While McDonald is shown carrying a three-inch knife, viewers do not see what happened before Van Dyke showed up on the scene, Herbert said.

“If you view it without the context, there really is no reason to shoot,” Herbert said. “However, if you place yourself in the situation that my client was in, that’s when it becomes reasonable, which will be our defense.” He added that in the 18-minute car ride to the scene, Van Dyke learned information that “raised his level of awareness and level of caution.”

The strategy to discredit the video, or at least offer an alternative translation of events, is common in these cases, said Debra Cohen, a New York City civil rights lawyer who works on cases involving victims of police shootings. The template for this approach is the 1991 video showing Los Angeles police officers kicking, stomping and hitting Rodney King, an unarmed black man who led them on a high-speed chase.

Despite public outcry, and a video that clearly showed King being waled upon by law enforcement, the officers were acquitted in the subsequent trial. Why? Their defense inched jurors, frame by frame, through the video to present an interpretation of events that showed the psychological state of the officers. The defense argued that King actively resisted arrest and that the officers were afraid he would run or attack them.

Also, a Washington Post analysis earlier this year found that, since 2005, only 54 officers were charged for fatally shooting someone while on duty, representing a small fraction of the thousands of fatal police shootings in that time. Of the 35 cases that have been resolved, only 11 were convictions. On Monday, authorities in Ohio announced that two Cleveland officers would not face charges in the 2014 death — captured on surveillance video — of Tamir Rice, a 12-year-old who had a toy gun.

Prosecutors are often reluctant to pursue these cases, for many reasons: They have long-standing relationships with the police and may hesitate when officers are involved in a fatal shooting, and they also worry they will make police reluctant to put themselves in harm’s way, out of fear of making an error, said Randolph McLaughlin, a professor at Pace Law School in White Plains, N.Y., and a civil rights lawyer who works with police shooting cases.

That is why it often takes an extraordinary circumstance — such as a video recording of the incident or a confession alleging a coverup — to persuade them to press charges. “There is no denying these are considered extremely sensitive cases, and for good reason: There is no harder case to win for a prosecutor,” said Lawrence Rosenthal, a former deputy corporate counsel for the city of Chicago under then-Mayor Richard M. Daley.

One rule of thumb among district attorneys: Juries tend to find police eyewitnesses more credible than average citizens. They also are easily persuaded that excessive force, while distasteful, is often necessary.

Judges also tend to favor the police in shooting cases, criminal-law experts say. And the case already faces charges of judicial favoritism after Van Dyke was allowed to post bail on a $1.5 million bond, a rarity for defendants facing first-degree murder charges.

“It certainly would not be an opportunity afforded to an average citizen,” said Donald Tibbs, a law professor at Drexel University in Philadelphia who specializes in the role of race in the courtroom. “That should raise some eyebrows.”

A first-degree murder charge typically presents the most difficult burden for prosecutors because it requires proving intent. But in cases where police officers are defendants, the burden is less so because law enforcement by its very nature requires intentional force. A 1985 Supreme Court decision, Tennessee v. Garner, established that police could not just shoot fleeing felons but needed to show they posed a significant threat of death or harm to them or others.

The U.S. attorney’s office in Chicago has opened an investigation into the McDonald case, which leaves open the possibility that additional charges will be brought against Van Dyke and that top city and county officials — including Cook County State’s Attorney Anita Alvarez, former Chicago police superintendent Garry McCarthy, who resigned after the video’s release, and Chicago Mayor Rahm Emanuel — could be pulled into the probe. The Justice Department announced earlier this month that it was launching a separate probe into the Chicago Police Department to determine whether it has a systemic problem with the use of deadly force.

There remain questions about why 13 months passed before Alvarez brought charges against Van Dyke in November, after a judge forced the video to be released — especially since the video could have complicated Emanuel’s reelection race (he won in a runoff in April). Scathing editorials in the New York Times, Chicago Tribune and Chicago Sun-Times called for Alvarez or McCarthy to resign, as did activist organizations, some Chicago City Council members, and civil rights leaders such as the Rev. Jesse Jackson.

That criticism has only grown louder since Saturday, when Chicago police fatally shot a black 19-year-old, Quintonio LeGrier, who was allegedly wielding a baseball bat, along with a bystander, Bettie Jones, forcing Emanuel to return early from vacation in Cuba. (Chicago police issued an apology, saying Jones was shot accidentally.)

Another potential vulnerability: the 86 minutes of surveillance tape a Burger King manager says Chicago police deleted after the shooting, which took place outside its doors on Oct. 20, 2014. Alvarez says an investigation shows that the tape was not altered, but she will not say who conducted the forensics. Since then, a local NBC outlet released surveillance footage from inside the restaurant showing a police officer appearing to tamper with the tape.

Following a Freedom of Information Act request by the Chicago Tribune, police released the surveillance tape, but it has a gap in the footage from about 9:18 p.m. to 10:39 p.m., including the time when McDonald was shot. There is also missing footage from three of the eight police vehicles that were on the scene that night.

What happens to Van Dyke could depend on the outcome, if any, of those inquiries. However, it is more likely that a federal trial will happen only if prosecutors can bring a different set of charges that would target the entire police department, or even the city, especially if an investigation is focused higher up the chain of command. If that happens, Van Dyke’s defense team could shift tactics and present him as a product of a corrupt system.

“The political climate could make this police officer look like a scapegoat,” Cohen said. “They will say he is responsible for his own actions, but he’s been carried on the shoulder of a system that’s corrupt.”


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