With long odds in Jason Van Dyke’s murder trial, the cover-up case offers hope

Nothing will fix Chicago’s broken police-citizen relationship overnight, but a new conspiracy case could be an important first step.

Special prosecutor Patricia Brown Holmes announces conspiracy charges against three Chicago police officers for their alleged cover-up of the truth about a 2014 on-duty killing. CREDIT: AP Photo/G-Jun Yam

Chicago Police Officer Jason Van Dyke is still awaiting trial for the murder of Laquan McDonald, a year and a half after he was first indicted in the 2014 killing.

But while the odds of a conviction are very long — in the rare instance that a police officer is charged with a crime over their use of lethal force on the job, they almost never lose before a jury — a separate legal front recently opened in the McDonald that case may present a better chance for winning some accountability from the Chicago Police Department.

Three other officers — two retired, one who remains suspended while fighting the city’s efforts to dismiss him — now stand accused of a criminal conspiracy to cover up the truth of Van Dyke’s actions that night. The conspiracy indictment, handed down in late June, could expand further to include other officers or city officials who allegedly knew of or were involved in police efforts to mislead the public and prosecutors about the moment Van Dyke shot the teenager 16 times.

Video initially suppressed by the city shows McDonald was backing away from officers when Van Dyke fired, not lunging toward them as the police had claimed in reports. Officers also rounded up surveillance footage from nearby businesses and then sought to prevent those images from becoming public, according to the indictment. Emails between staffers for Mayor Rahm Emanuel indicate his office was at least aware of the video and the discrepancies it shows between reality and the official story of the killing, but no one from outside CPD has yet been indicted in the cover-up case.

The special prosecutor in the cover-up case might simply be seeking leverage to assist her colleagues who are pursuing Van Dyke for murder. The officers named in the conspiracy indictment could be potent witnesses for the prosecution if they tell Van Dyke’s jury they misled the public to protect a fellow officer — or damaged witnesses for Van Dyke even if they do not flip on him to protect themselves.

Lawyers for the three officers have already dismissed the idea of cooperating with the state’s case against their former colleague. But while cutting a deal with the officers accused of a cover-up here might help bring closure to McDonald’s family, the larger community surrounding them might gain more from a stern and separate pursuit of the conspiracy charges.

The twinned prosecutions afford a double opportunity to attack a core problem that was entrenched long before the years-long court battle over McDonald’s death. Van Dyke’s case will be an uphill slog for prosecutors hemmed in by rules that tilt homicide cases in police officers’ favor. But those structural challenges won’t hamper the cover-up case, amplifying its potential for positive impact on a disastrous status quo relationship between the city’s public safety officials and the public itself.

A trust long since broken

The Chicago Police Department does not enjoy the trust or confidence of the citizens it serves. While the city’s reputation for frequent street violence tends to overshadow the legitimacy problems of its law enforcement institutions, the two cannot be separated. Cops don’t often solve crimes in Chicago, in no small part because experience has taught residents of the city’s poorest neighborhoods to distrust the department.

“When citizens report crimes, they’re more likely to cooperate, and they increase the criminal justice system’s effectiveness. But the reverse is also true,” Illinois State University police deviance expert Cara Rabe-Hemp told ThinkProgress. “Citizens who believe their police department is unfair or corrupt are not going to cooperate, and that’s going to reduce the effectiveness of the system. And in Chicago, you’ve got a long history of issues coming to bear on the police-community relationship.”

The clearance rate on homicide cases in Chicago has always lagged behind the national average, as clearance rates in big cities tend to do. But the department’s ability to solve killings in the same year they happen has fallen off a cliff in the past decade, collapsing from almost 50 percent in 2004 to just 20 percent in 2016. (Counting the cases that get solved eventually, Chicago PD still managed just a 30 percent clearance rate last year, less than half the nation-wide clearance rate.)

When the cops can’t figure out who shot your friend or family member, the idea of helping investigators can start to feel pointless as well as risky. And then there are the scandals. CPD tortured black suspects into forced confessions for decades from 1972 to 1991, as documented in scores of lawsuits. The department maintained an off-the-books “black site” for illegal detentions and interrogations from 2004 to 2015. A CPD drug unit led by former Sgt. Ronald Watts went corrupt, taxing dealers in exchange for ignoring their activity and in some cases even attacking their competition. And at the more quotidian level of police-citizen interaction, as federal investigators documented in a recent report, the CPD routinely humiliates and endangers the people it is meant to protect.

Researchers looking to explain the roots and impacts of police misconduct see their subject matter as a continuum, Rabe-Hemp said, with extremes at either end. At one end, police deviance is just about “rotten apple” officers who can be identified and excised “and then there’s nothing else corrupt about the basket.” Compared to the opposite extreme — what Rabe-Hemp called a “saturation of corruption” in both policing and other local institutions like prosecutors’ offices and City Hall — the “rotten apples” explanation is far more tempting for political leaders.

“It’s a much more straightforward response to eliminate one rotten apple than it is to have an institutional change,” Rabe-Hemp said. “There’s really good reason for [Mayor Rahm Emanuel] to say this is an individual officer that acted, it’s not representative of CPD behavior, we can eliminate that one rotten apple. From a solutions standpoint, it’s just much easier than requiring CPD and local institutions to take a hard look at whether [what happened] is or is not representative.”

Failing at the core task of solving crimes while flouting the constitutional rights of your citizens is a recipe for an out-and-out crisis in a security service’s public legitimacy, even if your officers aren’t also shooting people in dubious circumstances.

“We average about one police shooting a week. Multiply that over 30 years,” University of Chicago Law School policing expert Craig Futterman said in an interview. “One thing that hasn’t changed in those 30 years is that 70 to 75 percent of the people shot by CPD have been African-American. I’m over 50, and never in my lifetime has an on-duty CPD officer been criminally prosecuted for killing a black man, woman or child.”

“The police code of silence is entrenched practice here. It’s nothing short of criminal, but it’s never been challenged as such.”

Van Dyke’s trial will be historic, then. But so will the newer, parallel case in which multiple CPD officers are accused of conspiring to cover for Van Dyke and concoct a false narrative about McDonald’s death that would justify their colleague’s decision to shoot the teenager more than a dozen times within 15 seconds of arriving.

In the end, the conspiracy case is an indictment of the department as a whole, while the murder case fits into the “bad apple” basket of solutions. Their outcomes naturally have different implications for the project of repairing relationships between Chicago’s people and their police.

“It’s difficult to weight these things against each other. Both are historic,” Futterman said. “The police code of silence is entrenched practice here. It’s nothing short of criminal, but it’s never been challenged as such. If we care about addressing that code of silence that has allowed so many officers to hurt so many people without fear of punishment, this matters. And it also matters if we care about ending the rash of police killings of young black men in Chicago.”

A chance to break a losing streak

Van Dyke’s trial will be constrained by the same legal standards that have led juries to acquit multiple officers around the country so far this year. The failure to win convictions even in high-profile cases with damning video evidence, as in the mistrials of Michael Slager and Ray Tensing and the acquittals of Jeronimo Yanez and Betty Jo Shelby, has salted wounds for survivors and activists alike.

The conspiracy trial in Chicago may be the best chance police accountability activists have of breaking that losing streak. Prosecutors in the cover-up case will have their own challenges, Futterman said, but also an overwhelming pile of evidence to argue from.

Criminal trials in on-duty shootings are governed by a longstanding legal doctrine called the “reasonable officer standard.” Juries are given stern and narrow instructions on how they are and are not allowed to judge the fatal actions of the officer on trial. Recent acquittals and mistrials in South Carolina, Ohio, Oklahoma, and Minnesota have all hinged on these jury instructions.

Officers tried for covering up for their colleagues don’t enjoy the same structural protections of court doctrine. “It’s a very difficult standard for juries in these shooting cases,” Bowling Green State University police shootings expert Phil Stinson said. “You don’t have that in cover-up cases. And those happen a lot, by the way. But it’s difficult to measure, because [officers who conceal information] typically aren’t arrested.”

Yet conspiracy cases are notoriously thorny too, whether against police or anyone else. “If you’ve got someone at the hub of a conspiracy, the question becomes can you connect all the spokes together? If not, they’re separate conspiracies,” Stinson said. “That’s one of the things prosecutors fuck up: They don’t think it through and figure out, is this one big conspiracy or several smaller ones?”

Conspiracy charges also require the state to prove intentional and highly coordinated illegal activity, creating many opportunities for prosecutors to trip themselves up. In law school classroom terms, Futterman said, the need to prove intent “is actually a greater legal burden than what manslaughter cases face.”

But unlike the Van Dyke trial, where jurors will be explicitly instructed not to second-guess his decisionmaking and be restricted by the “reasonable officer” hypothetical standard, the cover-up trial will look at a longer window of time and a less subjective definition of criminal conduct.

“There is a massive amount of evidence of the cover-up after the fact,” Futterman said, calling the evidence that’s been revealed publicly to date “overwhelming.”

“They’re acts that involve deliberation. This isn’t something that can be reduced to a split-second decision, but rather decisions and actions played out over a course of time,” he said. “It’s not that they filed reports based on their perceptions in the moment. They’re not charged with misperceiving, they’re charged with lying.”

Prosecutors believe the accused officers destroyed surveillance tapes from nearby businesses, dismissed eyewitnesses whose testimony was inconvenient to their narrative, and submitted official reports that are contradicted by the video of McDonald’s final living moments.

If the separate prosecution of the alleged cover-up is successful, the public will have won some concrete accountability for its police department even if McDonald’s killer ultimately walks free. But none of the experts ThinkProgress spoke to believes a conviction in the cover-up case can repair Chicago’s civic breach on its own.

“One of the things that has to happen to bring about lasting change is that police organizations have to become more open to citizen input, not only in procedures but in investigating cases and in how they do their day-to-day work. Until that happens we’re going to continue to see this divide,” Rabe-Hemp said. “Now, whether or not a successful prosecution of these officers might jump-start that process, I’m not sure.”

Even a conviction would not necessarily deter other officers from slanting the official record to support their colleagues in the future, Stinson warned. But the quality of the evidence already public in the cover-up case combined with the immense data-sets Stinson has compiled on police shootings nationwide lead him to wonder about questions far broader than Chicago’s specific struggles.

“Here, I think the officers clearly thought they would be able to stop this dead in the tracks by writing up these false reports and the officer would never be charged,” Stinson said.

“So it raises the question: Alright, what about these other 900-something times a year across the country where the officer is found to be legally justified? Are there other cases in there that could legally speaking be considered murders? There could be dozens, hundreds. We don’t know.”