Today, the day before another Cook County Judge is scheduled to sentence Jason Van Dyke for murdering Laquan McDonald, Judge Domenica Stephenson, in a lengthy written decision, and true to her reputation as a pro-police judge, acquitted all three Chicago police officers who were on trial for covering up for Van Dyke.

The History of the Case

When Police Officer Jason Van Dyke let loose a hail of gunfire on 17-year-old McDonald, murdering him in October of 2014, the police code of silence quickly sprang into action. Van Dyke’s partner, officers on the scene, investigating detectives, and their superior officers all collaborated to manufacture, record and promote a false story: that Van Dyke shot McDonald in an act of justified self-defense.

Meanwhile, a video that revealed the lie behind the police’s cover story was kept secret by high-ranking city and county officials, including then Cook County State’s Attorney Anita Alvarez, for more than a year — until it was released by a Cook County judge in November 2015 in the wake of the publication of an autopsy report that showed that McDonald had been shot 16 times.

The reaction was seismic: Outraged people took to the streets, Police Superintendent Garry McCarthy was fired, Mayor Rahm Emanuel publicly admitted that there was a police code of silence and Alvarez was defeated at the polls. Later, the Mayor’s Police Accountability Review Commission and the Justice Department’s Civil Rights Division each issued scathing condemnations of the Chicago Police Department’s (CPD) racist policies and practices.

To top things off, Emmanuel recently announced he will not seek another term.

Community activists and a group of lawyers (myself included) petitioned for an independent African American special prosecutor to be appointed, not only to prosecute Van Dyke, but also to investigate and seek indictments of those who conspired to cover up Van Dyke’s murderous act. Former Cook County Judge Patricia Brown Holmes was appointed to investigate the cover-up. In June 2018, she obtained indictments against only three of the numerous officers involved.

Charged with conspiracy, obstruction of justice and official misconduct were Van Dyke’s partner, Joseph Walsh, officer Thomas Gaffney, who was also at the scene of the murder, and Detective David Marsh. At the heart of the charges were false reports manufactured and filed by these men and several of their fellow officers. The numerous, higher-ranking officers in the chain of command who approved these false reports and later quashed the police department’s internal investigation were referred to only as “Individuals A” through “H” in the indictment, while command personnel were not even mentioned.

The Judge and Lawyers

The case was originally assigned to Cook County Criminal Court Judge Diane Cannon, a former Cook County assistant state’s attorney during the Jon Burge police torture era.

Cannon is known to be notoriously pro-police, as she recently demonstrated when she acquitted a Chicago police commander who had shoved his gun into an arrestee’s mouth during an interrogation, despite the fact that the victim’s DNA was found on the barrel of the commander’s gun.

In July 2018, Special Prosecutor Holmes exercised her right to disqualify Cannon without stating a reason. The case was then assigned to Judge Domenica Stephenson.

Stephenson, also a former assistant state’s attorney, began her Cook County prosecutorial career only months before the police department suspended Burge in 1991. She was assigned to the Cook County State’s Attorney’s Office’s felony review unit and soon thereafter became connected to one of Burge’s final torture cases.

The case centered on 11 young Black youth, most of whom were juveniles, who were taken to Burge’s detective headquarters then located on Chicago’s west side, and interrogated about a fatal shooting. Several of the youth, including 13-year-old Marcus Wiggins, alleged that they were held in a cage, then beaten and tortured over a 12-hour period by Burge’s crew of detectives, with Wiggins later testifying that he had been electrically shocked during the torture. He and the other boys were then turned over to Stephenson and another felony review prosecutor who took their tortured confessions.

The charges against the youth were dismissed after a Black judge who presided over the case condemned the “oppressive” nature of the interrogations.

Wiggins, whose statement Stephenson took, later sued the city and obtained a substantial monetary settlement. (Full disclosure — I was one of Marcus’s lawyers in his civil case.)

Most recently, Judge Stephenson was involved in an incident where she reported fellow judge William Hooks for allegedly berating her. Judge Hooks was disciplined by the court’s chief judge, temporarily removed from his courtroom and directed to take anger management classes.

Sources confided that Stephenson had triggered the confrontation in the judge’s lunchroom by criticizing Hooks for his decision in the high-profile Jackie Wilson police torture case, in which he had courageously granted Wilson a new trial after finding he had been tortured by Burge and his men.

Detective Marsh’s lawyer is James McKay — until recently, a longtime Cook County state’s attorney who had worked closely with Stephenson during a high-profile murder prosecution before she took the bench. Tom Breen, a well-known criminal defense lawyer who often represents cops and mobsters, and whose most recent claim to fame was his representation of George Papadopoulos of “Russiagate” infamy, represents Walsh. William Fahy, another former prosecutor who also often represents cops, most notably the officer whose brutal beating of a female bartender was caught on videotape and received nationwide notoriety back in 2007, represents Gaffney.

Special Prosecutor Holmes had already exhausted her only allotted judicial challenge, and the cops’ defense lawyers, more than satisfied with Judge Stephenson, waived their right to a jury trial, a time-honored practice in Cook County when a cop is on trial before a former prosecutor.

The Trial

The cover-up trial began on November 27, 2018, less than two months after a Cook County jury had found Van Dyke guilty of second-degree murder and 16 counts of aggravated battery.

Ron Safer, a highly respected former assistant US attorney who most recently proved instrumental in freeing a man wrongfully convicted for murder, joined Holmes at the trial. The special prosecutor’s case was relatively simple and straightforward. It featured “Individual A,” Chicago Police Officer Dora Fontaine, who was granted immunity from prosecution.

She testified that she was assigned to write the initial police report at the scene, and at the direction of defendant Marsh, she included that McDonald injured Van Dyke during the incident and listed Van Dyke, Walsh and Gaffney as “victims.” Later that morning, while back at the station, Marsh showed her the squad car video, highlighting portions where he claimed McDonald was acting as the aggressor. Unbeknownst to Fontaine at the time, Marsh then wrote a report in which he falsely attributed to her that she saw McDonald raise his arm and move to attack Van Dyke with a knife.

Fontaine testified that she was “horrified” when she first learned about Marsh’s fabrication, and her repudiation of the lie Marsh attributed to her, and her later cooperation with the prosecution, led to her being branded a “snitch” and “rat” by her fellow officers, putting her in fear for her life. Attorney McKay subjected Fontaine to what the Chicago Tribune described as a “withering” cross-examination, where her age, intelligence, motivation, integrity and truthfulness were mercilessly attacked. Still, according to the Tribune, she “held firm.”

Special prosecutors also presented a civilian eyewitness who was waved from the scene when he attempted to give a statement to the police. They presented defendants Gaffney and Walsh’s reports, where the defendants falsely described themselves as victims of separate aggravated assaults by McDonald, asserted that he was still threatening them as he lay mortally wounded on the street and claimed that the video was consistent with the official police version of events. The prosecutors also showed the highly disturbing video, frame by frame, to the judge, breaking it down to contrast it with the defendants’ false stories.

The prosecutors also offered a series of emails that provided a glimpse of the broader conspiracy and its reach into the higher levels of the police department. The first was dated November 2014, the month following McDonald’s shooting, and contained a lengthy justification of Van Dyke’s actions: “Offender takes aggressive stance, hikes pants, whips knife open, starts hopping[,] continues advancing toward officers,” CPD Sgt. Daniel Gallagher wrote to Lt. Anthony Wojcik.

Gallagher, seeking to justify the number of shots fired by Van Dyke after McDonald fell to the street, continued: “Can’t overkill a person who is still alive at the hospital…. We are trained to shoot until the threat is eliminated defeated or neutralized. Officer did exactly what he was trained to do, we should be applauding him, not second-guessing him.” After the head of the Law Enforcement Legal Defense Fund asked Wojcik whether he had “any luck making the case go away,” Wojcik officially closed the police department’s internal investigation, finding that McDonald’s slaying was a “non-criminal” shooting because he was “an active assailant” who “used force likely to cause death” and initiated an “attack” against Van Dyke and Walsh.

After the prosecutors rested their case, and the defense unsuccessfully argued for the judge to direct a verdict in their favor, the defense lawyers introduced some limited evidence designed to suggest an innocent explanation for the “errors” in their clients’ reports and to demonstrate that Marsh conducted a thorough investigation. None of the defendants took the stand, and they left it to their lawyers to attack the prosecution’s case in closing arguments. McKay was the most vitriolic, blaming McDonald and castigating Fontaine, while extolling his client’s work. The lawyers for the other two defendants ridiculed the prosecutors’ assertions of criminal intent and conspiracy in more measured tones.

Attorney Safer gave the prosecutors’ rebuttal argument. He contended that there was no explanation for three identical false reports other than conspiracy, and closed with a powerful admonition to Judge Stephenson: “No matter how hard it is, no matter how painful it is, you must find these defendants guilty. The law requires it. Justice demands it. Our society depends upon it.” The judge then, on December 6, took the case under advisement, and later set today as the day she would render her verdict.

It is important to consider what this trial did not address: the systemic culture of racist police brutality and cover-up that has permeated the police department for many decades. It also did not address the involvement of the department’s command personnel, from its superintendent on down, nor did it address the suppression of the video that was orchestrated by Chicago and Cook County politicians.

On the other hand, it did expose for all to see how the police code of silence operates on the ground in this particular case of police murder, and put some of the actors on trial for implementing it. And it has once again exposed that, with few exceptions, the Cook County judiciary is still brazenly beholden to the Chicago police, a reality that has been repeatedly exposed from the Fred Hampton Black Panther case nearly 50 years ago to today’s decision.

It is important to remember that wanton and racist police violence is not unique to Chicago, nor is a pervasive police code of silence and cover-up. Thanks largely to an outraged movement, these systemic problems were brought to light (and a precious few of the perpetrators put to trial) here, but without a continuing and sustained local and national movement, particularly in the age of Trump, we can expect an ever-heightening law enforcement effort, with the active assistance of pro-police judges, to justify this violence and, as Judge Stephenson did here, to once again unconscionably sweep the evidence of egregious official misconduct under the rug of cover-up.

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