Prosecution files motion to revoke or increase bail in Jason Van Dyke case

This is an archived article and the information in the article may be outdated. Please look at the time stamp on the story to see when it was last updated.

CHICAGO -- Attorneys prosecuting Jason Van Dyke on murder charges filed a motion Thursday to revoke or increase the Chicago police officer's bail.

Van Dyke's interview with the Chicago Tribune took place with his attorney standing nearby, and it quickly set off a new legal fight just days before jury selection in the case, which led to days of protests after a video of the shooting was made public and Van Dyke arrested.

When attorney Joel Brodsky saw the interview, he said, he knew one thing for sure: Van Dyke is never going to take the witness stand in the slaying of Laquan McDonald.

"This allows him to basically testify without taking the stand and being under oath, to tell the jurors that he's not a racist (and) he's never fired his gun," Brodsky said. "If he was going to take the stand, why give the interview?"

Prosecutors say the officer's comments, published Wednesday on the front page of the Tribune, were a clear violation of a judge's order prohibiting the parties in the case from talking about it publicly. A court hearing was scheduled for Saturday.

For the officer and his legal team, the interview raised the curtain on their strategy to humanize Van Dyke for prospective jurors. Until now, they said, their client has been defined only as the officer seen on dashcam video pumping 16 bullets into the body of a teenager armed with a folded pocketknife.

"During the past four years, there have been thousands of news stories portraying Mr. Van Dyke in an extremely negative light in this case," attorney Daniel Herbert said in a statement in response to prosecutors. "Not one has included Mr. Van Dyke's voice."

It can be a risky move, something Brodsky saw for himself when he represented Drew Peterson, the suburban Chicago police officer who was charged with murder in the death of his third wife. Before he was convicted in 2012, Peterson gave interview after interview to national and local media outlets, often appearing smug and even enjoying the limelight brought on by investigation into the death of Kathleen Savio and the disappearance of his fourth wife, Stacy Peterson.

"His downside was not the things he was saying. It was his personality (and how) everything was a game and a goof to the guy," Brodsky said. "If I had it to do again, I would have restrained Drew more."

Audio of the Tribune interview was used by Chicago public radio station WBEZ. Van Dyke also gave an interview to the Chicago-area Fox station.

Asked why defendants might not want to talk, David Erickson, a former state appellate judge who teaches at Chicago Kent School of Law, pointed to an even more famous case: O.J. Simpson.

"When his lawyers kept their client's mouth shut, he was acquitted," Erickson said. But when the former football star was acquitted, "they couldn't keep his mouth shut, and he got sued and lost."

But to hear some observers tell it, it may have been a risk worth taking for Van Dyke, who has remained silent while media coverage has swirled around him.

"There's really been no other side to it, so all of a sudden before you know it, what happened has been defined in people's minds," said Guy Chipparoni, president of Res Publica Group, a strategic communications firm in Chicago. "You have to find a way to neutralize the landscape."

In fact, one prominent Chicago defense attorney, Joe Lopez, said Van Dyke had little choice.

"This guy has been convicted by all these grass roots groups saying this stuff about how he was the judge, jury and executioner, so the jury pool is absolutely tainted," he said. "He had to do something to untaint the jury pool and because the lawyers couldn't do that, the client did it."

And by taking that risk, David Erickson, a former state appellate judge who teaches law at the Chicago Kent College of Law, said potential jurors now know exactly what Van Dyke's lawyers want them to know.

"They know he's got two kids, a wife," he said, "and this has been really hard on him and his family."

Van Dyke was arrested in November 2015, a year after the shooting and on the same day that the video was released. The police department has suspended him without pay.

Motion filed by prosecutors in Jason Van Dyke case:

Van Dyke's attorney Dan Herbert released the following statement:

"This is a very sad day in a case that has seen many firsts. The attempt to revoke or increase Jason Van Dyke's bond for exercising his First Amendment right is an egregious abuse of power.

"Mr. Van Dyke was very careful not to discuss evidence in the case or the shooting itself in his interviews. He expressed his personal feelings, the impact this had had on his family and his hope that protests will be peaceful and no will be hurt in the city.

"Due to the constant threats and turmoil surrounding this case, Mr. Van Dyke fears for his life now and the safety of his family and others in Chicago. He feels this could be his only opportunity to express his feelings. During the past four years, there have been thousands of news stories portraying Mr. Van Dyke in an extremely, negative light in this case. Many have contained false information. Not one has included Mr. Van Dyke's voice. He has a constitutional right to express his feelings as well."

Notice: you are using an outdated browser. Microsoft does not recommend using IE as your default browser. Some features on this website, like video and images, might not work properly. For the best experience, please upgrade your browser.