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Jason Van Dyke's Attorney Can Stay On Case, Poses No Conflict, Judge Rules

By Erica Demarest | September 28, 2017 3:56pm | Updated on September 29, 2017 11:35am
 Defense attorney Daniel Herbert (left) chats with client Jason Van Dyke  during a status hearing at the Leighton Criminal Courthouse, 2650 S. California Ave. File photo.
Defense attorney Daniel Herbert (left) chats with client Jason Van Dyke during a status hearing at the Leighton Criminal Courthouse, 2650 S. California Ave. File photo.
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Chicago Tribune/Nancy Stone

COOK COUNTY CRIMINAL COURTHOUSE — A Cook County judge Thursday said Jason Van Dyke's defense attorney poses no conflict of interest in the Laquan McDonald murder case — despite previously representing five Chicago police officers who might testify at trial.

Van Dyke, 39, is charged with first-degree murder, official misconduct and aggravated battery in the October 2014 shooting of 17-year-old McDonald, who was shot 16 times near a Burger King in Archer Heights.

In the immediate aftermath of the shooting, defense attorney Daniel Herbert briefly represented five Chicago police officers — not including Van Dyke — as they were interviewed by IPRA, the Independent Police Review Authority.

The state could ask all five to testify at trial.

Special prosecutor Joseph McMahon on Thursday asked Judge Vincent Gaughan to determine whether Herbert's links to the officers posed a conflict of interest. Herbert has served as Van Dyke's lead counsel since November 2015.

"The fact of the matter is: Mr. Herbert represented the majority of the state's key witnesses," special prosecutor Marilyn Hite Ross said during an hourlong hearing at the Leighton Criminal Courthouse, 2650 S. California Ave.

"Mr. Herbert had insight into what these witnesses had said long before the prosecutors ... were on the case. That allowed Mr. Herbert to gain an advantage and quite frankly, judge, know more about the state's witnesses than the people did."

According to court testimony, Herbert only represented the five officers on Oct. 21, 2014, the day after McDonald was killed.

Defense attorney Steven "Randy" Rueckert argued that one day of representation nearly three years ago was not enough to constitute a conflict of interest. Each of the officers now has a different attorney.

"There is no conflict," Rueckert said.

"I was brought on to this case because I'm not part of Mr. Herbert's firm," Rueckert continued. "I'm an independent lawyer. I'm different from Mr. Herbert. ... Should there be any potential conflict of interest, I would be here to question any witnesses. ... If there is a conflict of interest, my presence negates that."

Judge Gaughan agreed: "So, Mr. Herbert is the attorney."

Van Dyke will next appear in court Oct. 17.

RELATED: Jason Van Dyke Testifies About Laquan McDonald Shooting Aftermath

According to prosecutors, McDonald was armed with a 3-inch blade and stealing truck radios when Chicago police officers in Archer Heights called in a request for a stun gun on Oct. 20, 2014. 

Van Dyke and his partner responded to the call, but never specified whether they had a stun gun, according to authorities. Within seconds of arriving on the scene, Van Dyke pulled his gun and emptied his magazine into McDonald.

Video of the shooting, which was released via court order in November 2015, sparked citywide protests that shut down the Mag Mile. Shortly after, Police Supt. Garry McCarthy was fired; Cook County State's Attorney Anita Alvarez lost her bid for re-election; and a sweeping investigation by the U.S. Department of Justice found widespread racist abuse in the Chicago Police Department.

Special prosecutor Patricia Brown Holmes in June brought charges against three Chicago police officers accused of helping cover up the McDonald shooting: former detective David March, former Officer Joseph Walsh and Officer Thomas Gaffney.

All three are charged with conspiracy, misconduct and obstruction of justice. Each has pleaded not guilty.

RELATED: 'Code Of Silence': 3 Officers Indicted In Alleged Laquan McDonald Cover-Up