Van Dyke's attorneys seek to dismiss murder charges

Jason Van Dyke | Cook County state's attorney's office

Attorneys for Chicago Police Officer Jason Van Dyke on Tuesday filed a motion seeking to dismiss murder charges filed against him in the 2014 shooting death of Laquan McDonald.

Van Dyke’s attorney Daniel Herbert argues in the three-page motion that statements Van Dyke made to investigators following the shooting were improperly used against him, the Chicago Sun-Times is reporting.

The statements made by Van Dyke, Herbert argues, are shielded under what are known as “Garrity Rights” — which offer protections to public employees from being compelled to incriminate themselves during investigatory interviews conducted by their employers. The protection falls under the Fifth Amendment, which declares that the government cannot compel a person to be a witness against one’s self.

Herbert said that statements Van Dyke made to the Independent Police Review Authority and the city’s Inspector General fall in this category.

Van Dyke, 38, is accused of shooting the 17-year-old McDonald 16 times in October 2014. But he wasn’t charged until last year, after a shocking video of the incident, filmed by a dashboard-mounted camera, was released, prompting protests across the country.

According to the motion filed Tuesday, Van Dyke and the other officers “were expressly promised the statements would not be used against them in any criminal proceedings and that they would be fired if they refused to provide the statements.”

The statements were “given under duress and are protected by the immunity” that Garrity Rights provide, the motion states.

“The prosecution and an FBI agent disclosed Garrity protected statements to grand jurors in an attempt to influence the issuance of an indictment,” the motion states.

Cook County Judge Vincent Gaughan did not rule on the motion to dismiss and scheduled the next hearing in the case for Feb. 3.

In addition, former Cook County State’s Attorney Anita Alvarez improperly shared statements with the press, according to the motion.

A representative for Alvarez said she couldn’t comment since the case is being handled by special prosecutor, Kane County State’s attorney Joseph McMahon. McMahon’s office also declined comment, citing the gag order imposed by Gaughan.

Also on Tuesday, Gaughan said he will turn over to lawyers Laquan McDonad’s juvenile records except those pertaining to the teen’s mother and sister.

Gaughan said he will review the material and rule later on whether the records are relevant in to the case.

Van Dyke’s attorneys have been twice denied the Illinois Department of Children of Family Service records by a Juvenile Court judge. They have since asked Gaughan to reconsider Judge Patricia Martin’s past decisions.