Chicago -- Lawyers for the ex-Chicago officer convicted in a black teen's death are contesting a reports the Chicago Tribune. Attorney General Kwame Raoul and the special prosecutor who won the conviction against Jason Van Dyke said last week they believe Judge Vincent Gaughan did not properly apply the law when he last month in the 2014 shooting death of Laquan McDonald.from prosecutors, who consider the punishment too lenient,
In a rare move, Raoul and Kane County State's Attorney Joseph McMahon filed a request with the Illinois Supreme Court seeking an order that would send the case back to Gaughan for a new sentence. But Van Dyke's attorneys say such a challenge is only warranted in extraordinary circumstances in which a judge had obviously violated a state statute, reports the Tribune, which they argue Gaughan did not.
Van Dyke was convicted last year of second-degree murder and 16 counts of aggravated battery with a firearm. Absent a new sentence and with credit for good behavior, Van Dyke will likely serve only around three years for firing 16 bullets into McDonald in 2014. Dashcam video of the shooting released by the city in 2015 showed Van Dyke continued to fire as the 17-year-old crumpled to the street and lie on the ground. The sentence was the first imposed on a Chicago police officer for an on-duty shooting in a half century.
A central issue 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.
At his sentencing hearing last month, Van Dyke's defense asked the judge to sentence Van Dyke on the second-degree murder conviction alone, while prosecutors argued he should be sentenced on the aggravated battery counts. The minimum for those convictions can be as high as 96 years, but prosecutors asked a judge for 18 to 20 years.
Gaughan, in issuing his sentence, ruled in favor of the defense to sentence Van Dyke on the second-degree murder conviction. His sentence of six years and nine months was met with anger and disappointment by activists and McDonald's family. 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 filing their request last week, Raoul and McMahon asked the state supreme court to vacate Van Dyke's conviction for second-degree murder and impose a sentence on each of the 16 aggravated battery counts, according to a press release from the attorney general's office. They asked the court to determine which of the aggravated battery convictions constituted "severe bodily injury," which would warrant consecutive sentences.
But in a response issued to the high court Monday, Van Dyke's attorneys argued "no one would contest that death is a more serious 'injury' than a wounding," the Tribune reports.
They also reportedly argue that a successful lengthening of Van Dyke's sentence would warrant a more aggressive appeal, though Van Dyke has said he does not want another trial, according to the Tribune.
The court has no timeframe to rule on whether it will consider the prosecutors' petition, according to the attorney general's office.
Van Dyke's wife Tiffany Van Dyke said last week her husband was transferred from an Illinois state prison to a federal prison in Connecticut where he was assaulted. She said she fears he is still in danger.
"I don't need people to go into his cell and attack him," an emotional Tiffany Van Dyke told reporters. "The next time this could happen, they could kill him. I cannot bury my husband."
The Illinois Department of Corrections confirmed Thursday that Jason Van Dyke was moved to federal custody but would not say why. Asked about the attack on Van Dyke, the federal Bureau of Prisons said in an email that it could confirm "an assault resulting in minor injuries" occurred on Feb. 7. The bureau declined to provide additional information, citing privacy concerns.