The Cochran Law Firm

The following was taken from Brian Dunn’s radio show “A Nation Divided”, which is aired live every Saturday at 4 pm Pacific Time on 790 KABC.

Brian Dunn: We are KABC talk radio seven-ninety, you are listening to A Nation Divided, I am Brian Dunn. On this show we handled cutting edge issues that draw wedges between ourselves as Americans, and we seek through this show to tear down the walls that separate us as Americans. Today we’re going to be handling a cutting edge issue that has certainly fit the bill of dividing our country. And specifically that issue is criminal prosecutions of law enforcement officers that arise out of uses of force in the line of duty. We are once again blessed to have Megan Johndras in the studio. As I am fond of saying, “There are those that say, and there are those that do. There are those that talk, and there are those that do.” I have seen first hand that Megan Johndras is definitely, firmly, in the category of one who does. We have worked on literally dozens of cases together in which we have collaborated. She is without question the smartest attorney that I have ever, ever had the pleasure of working with, and her commitment to social justice remains steady. Thank you for being here Megan.

Megan Johndras: Thank you for having me Brian.

Dunn: So, let’s just get right into it. As we were talking about earlier, an event happened last week that is unprecedented. It hasn’t happened in our nation. In fact, nothing like it has even come close to happening in our nation, and we’re talking about a verdict in a criminal case that came out of Chicago. Why don’t you tell us about that next?

Jonndras: So what happened last week Brian, was we had a conviction of an officer named Jason Van Dyke, who shot and killed an individual named Laquan McDonald in Chicago. This happened back in October, 2014. As I’m sure you are aware and as most of the country is aware, a criminal prosecution was brought as a result of the shooting of Mr. McDonald. Officer Van Dyke was charged with sixteen counts of aggravated battery with a firearm, he was also charged with second degree murder.

Dunn: And even that alone is extremely rare – just the fact that there is even a prosecution in the first place is something that we almost never see. But something else happened in this case, tell us about it next.

Johndras: What happened in this case is the video evidence played an incredibly huge roll, I think, in the securing of these convictions, for officer Van Dyke. And what we saw in this case was an interplay between the testimony of an officer, who’s telling his story to a jury, and we’re seeing that story that’s being told by that officer, literally contradicted by objective video evidence showing exactly what happened in the moments immediately proceeding and during the shooting of Mr. McDonald.

Dunn: So why don’t you tell us how that played out?

Johndras: So, a little bit of background is probably appropriate. Officers in Chicago were initially responding to a call of a man who was carrying a knife, he was breaking into vehicles in a trucking yard. At some point after officers responded to the location of his call, Mr. McDonald used the knife to pop one of the tires on the patrol vehicle, also scratched a windshield. Didn’t hurt anybody. Didn’t hurt any person. But yes, there was some damage done to one of the officer’s cars. He was not shot by those officers at that time. In fact, they requested a taser. They’re dealing with an individual who’s behaving erratically. He does have a knife. They asked for a taser, which is an appropriate use of force option in this situation. And officer Van Dyke would respond to this call, and he would end up exiting his vehicle, and approximately six seconds after he did so he would empty his gun into Mr. McDonald. Firing sixteen times.

Dunn: Sixteen rounds.

Johndras: Nine of those shots hit Mr. McDonald in the back, and all of them were captured on video.

Dunn: Back to front. Sixteen rounds. That is typical of the firearm that he has, it would have fifteen rounds in the magazine, one in the chamber, and did he shoot all of them?

Johndras: He did.

Dunn: So what we have here is a situation where an individual does not pose a deadly threat. He doesn’t pose a situation in which he’s injured anyone, or threatened to injure anyone. He’s done some property damage to a police vehicle, which I could understand would draw the ire of many municipal law enforcement officers. But he hadn’t hurt anybody, is that correct?

Johndras: That is correct.

Dunn: Hadn’t threatened to hurt anybody.

Johndras: Had not threatened to hurt.

Dunn: Didn’t have a gun?

Johndras: Did not have a firearm.

Dunn: What did the officer say?

Johndras: Well, officer Van Dyke had claimed that McDonald was lunging towards him with the knife at the time that he fired. That testimony was absolutely contradicted by the video, which very clearly showed Mr. McDonald moving away from all of the officers that were on the scene. Nobody was in the immediate vicinity, and one of the most chilling things that you can see depicted on that video is that after the first few shots are fired, perhaps even after the first shot, Mr. McDonald goes down to the ground. He’s no longer moving, if at all, in a very minimal fashion at that point. And you can continue, while you cannot see officer Van Dyke, you can see the rounds that he is firing, because they are literally skipping off the pavement around Mr. McDonald’s body.

Dunn: While he’s lying down.

Johndras: While he’s on the ground.

Dunn: And he’s clearly been shot at this point.

Johndras: It would appear as to any reasonable person who saw that he had at least been wounded by one of those shots.

Dunn: And while he’s on the ground he’s continuing to be shot.

Johndras: Yes.

Dunn: So, what we have is a situation somewhat similar to what we have seen in our career, but what makes it different is the video. Now specifically you have an officer that’s saying the man is armed with a knife and he’s lunging at me. And on its face that would sound like a normal justification for the use of deadly force, am I right?

Johndras: Yes.

Dunn: But in this case, there was a wrinkle. In fact there was more than a wrinkle. It was a crease. Because the officer literally was faced with uncontradicted evidence showing that he could not have been lunging at him. So there’s a situation where you have an inherent impossibility. Factual impossibility, as to what the officer said his were his reasons for killing a man versus what actually occurred. Now, have you seen that play out in your career before?

Johndras: Oh absolutely. We’ve seen that play out, you and I, in a number of our cases, but one that comes to mind was the shooting of Nicholas Robertson who was killed in Linwood back in December of 2013. He had a gun. He had fired it, and that’s not a safe thing for anybody to be doing, especially in a residential area. But by the time the Los Angeles County Sheriff’s Department arrived at the location where he was, they saw him, he wasn’t threatening anybody. He was holding the gun down by his side. He didn’t point it at anybody. He didn’t point it at the police. He would walk across the street to a gas station, and then they would open fire. And the entire shooting of Mr. Robertson was also captured on video, and it did show a number of shots being fired at Mr. Robertson’s backside as he was walking, and then crawling, away from the officers towards the gas station.

Dunn: So back to the Laquan McDonald verdict. It appears as though there’s a common denominator in these cases that we’ve been discussing, and that being video. Now specifically when I started back in 1993, video taped depiction of any type of officer involved use of force was extremely rare. The first time I had ever really seen it happen was Rodney King. And of course that definitely divided the nation, to put it very mildly. It was the first time anyone had seen anything like that. Now, these types of situations are becoming much more commonplace. Obviously these handheld devices that we all carry are capable of capturing video very quickly. Not only that though, but surveillance cameras; you talked about the Robertson case where we had some absolutely pristine video from the Arco gas station where it occurred. And then fast-forward to Laquan McDonald where the video … Is it coming from a body-cam, or the dash-cam? Where did it come from?

Johndras: It was the dash-cam I believe of actually the vehicle that was carrying the officers who were bringing the taser to the scene. That’s my understanding.

Dunn: Okay. So, obviously we couldn’t get in the minds of the jurors, but we have never seen a second degree murder conviction in a criminal case, after a criminal prosecution was initiated, ever. That just has not happened before.

Johndras: Not in our careers. And it’s very rare generally in the nation.

Dunn: Yes – but what’s more important is, in addition to the second degree murder finding, we had sixteen counts of aggravated battery. Tell us about why – why sixteen counts?

Johndras: Sixteen counts of battery represented one count of battery for each bullet that officer Van Dyke fired.

Dunn: So, sixteen bullets fired…

Johndras: Sixteen counts of battery.

Dunn: Sixteen counts of battery, each which contains a separate term that could be imposed when it comes to the sentencing phase of this.

Johndras: I believe it’s three to six years, for each count.

Dunn: And that could run consecutively. What do you think, Megs, what is the significance of that to you?

Johndras: I think the significance of it is that, number one it’s so rare to see this kind of a prosecution occur at all. And number two for it to result in these convictions is even rarer. And you know, I think one of the key pieces of evidence this jury must have considered, especially in light of the testimony that they heard from the officers, was that video. Which was the best evidence of what actually occurred. It was objective, it was neutral, and it showed everything they needed to see to reach this result.

Dunn: But on a deeper level something shifted. And that’s one of the reasons why we have to talk about this now, because essentially, we can talk about the evidence, we can talk about the video, we can talk about the counts, we can talk about the prosecution. Somewhere along the line, these people said, “We’re tired of this. This is not going to be business as usual for this type of situation, we have had enough, and we are actually going to make a statement with our verdict that we hope resonates,” and it did.