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Litigation Journal

Fall 2022 | Work

Working the Heater Case

Daniel Q Herbert


  • Some cases are decided on factors wholly unrelated to the evidence at trial.
  • This is profoundly true with sensational cases.
  • Defending an unpopular client in a high-profile case is difficult on a multitude of levels.
Working the Heater Case
Cecilie_Arcurs via iStock

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Lawyers are called to the legal profession for any number of reasons: fame, fortune, the bright lights. I am still waiting on the first two, but I found the bright lights. In 2015, I agreed to represent Chicago Police Officer Jason Van Dyke in the shooting death of Laquan McDonald. It was a sensational case, with the death of McDonald captured on a video broadcast repeatedly around the world. The shooting occurred in 2014. Van Dyke was charged with murder in 2015, and the case went to trial in 2018. What transpired during that time span was unlike any case I had ever experienced.

As a prosecutor and in private practice, I tried numerous cases that had considerable public and media attention. With the Van Dyke case, I found out what it was like to litigate a true “heater” case on the biggest of stages. With such a reality came substantial and exceptional challenges for me as the defense lawyer. I needed a new playbook.

Rumors that the shooting had been captured on video began to circulate shortly after McDonald was killed. At that point, only a few of us had seen the video. Nonetheless, word got out that the video was not good. The city tried to keep the video from becoming public. As months went by, the story perpetuated, fueled in part by the secrecy. Clearly, the video was epic, considering the extensive efforts taken to prevent its release. The news media were relentless, and the pressure to make the video public began to build in the community.

When the video finally was released after a court order, it was as though a bomb exploded. The video showed Van Dyke shooting at McDonald 16 times. Civil unrest followed; police department leaders were fired; politicians were forced to resign or were voted out of office; law enforcement, not just in Chicago but also across the nation, were villainized. It became obvious this case was about much more than Jason Van Dyke killing Laquan McDonald. Van Dyke became the face of perceived police misconduct against generations of minorities, as McDonald was a Black teenager killed by a white cop. While the entire law enforcement community essentially was on trial, my client was the only one facing charges that could put him in prison for the rest of his life.

I anticipated, correctly, that I would be viewed as the white, former Chicago police officer turned lawyer who was defending the white police officer who killed a young Black man. Having seen the video before its release, I knew members of the public would be outraged. They were. While not surprised by the initial public reaction, I did not anticipate the public’s sustained appetite for the case. I had never seen a case as unaffected by time as this case was. I had assured previous “high-profile” clients that another “scandal” would come along and knock them out of the spotlight and they would be all but forgotten by the media and the public. That never happened in this case.

How a High-Profile Case Affects the Lawyer

Defending an unpopular client in a high-profile case is difficult on a multitude of levels. From start to finish, I faced unique issues, from pretrial through sentencing and beyond. Going into the case, I anticipated many of the challenges. However, certain events were beyond my comprehension. There were pros and cons associated with accepting such a case. I knew that I needed to develop strategies for dealing with the media. There were also factors foreign to most cases, including personal safety concerns.

The decision to represent a client accused in a racially charged, highly scrutinized case should not be taken lightly. The biggest concern I had in the Van Dyke case was the safety of my family. I was married with four kids, two in grammar school and two in high school at the time. Furthermore, I had five female employees, and my office had street-level access. We received threats, some concerning, others ridiculous. Once it became apparent that Van Dyke would remain Public Enemy No. 1, I discussed with him long-term safety and security issues. We created a substantial security plan to protect my client and his family. However, I was constantly unsure if we had done enough. This security effort also extended to my family and my office, although to a much lesser degree.

Another consideration before taking on such a high-profile case is a bit more selfish. What impact would this have on my reputation, both within the legal community and the community at large? From the beginning, I knew that it was unlikely I would get a “not guilty” for Van Dyke across the board, given the atmosphere around the case and the video evidence. I recognized that my decisions and strategies would be critiqued to no end. The Monday-morning quarterbacks, on a national level, would be loud, especially in the dark world of social media. Upon the video’s release, I made private all my social media accounts, but not before the attacks had quickly started. I had much less concern about the reaction of the legal community, where members understood the role of the lawyer in our judicial system. The public would be less forgiving and more judgmental of my work. Thick skin is required.

Next, a genuine concern was how such a case would affect my practice. Representing a detested client is not welcomed by the community and would very likely have an impact on future business. At the time I took the case, I had many former and current clients who were African American. I was concerned that my involvement in this case would alienate potential clients from the Black community. However, here, people from all communities were outraged. What would become of my practice when the case was finished? Would I need to reinvent myself? After the Van Dyke case, I did lose some business prospects and needed to reinvent myself to a certain extent. It was not easy and left me wondering if I had made the right decision long-term. Time will tell, although I have no regrets.

I ran a relatively small, mom-and-pop type firm, and I was responsible for the revenue stream. There were expenses to consider, not the least of which were the salaries and benefits of my hard-working staff. High-profile cases such as this are simply more expensive. With the exception of one attorney who kept the firm’s engine running, my entire office worked almost exclusively on the Van Dyke case for several months. We turned down cases. We referred out many cases that we would have kept but for the heavy workload on this case.

Another factor worth mentioning is burnout. Over the years, I have heard a number of lawyers lament, usually at the end an exhausting trial, “Trial work is a young lawyer’s game.” I never believed that until I was done with the Van Dyke case, when I was just burned out. It was the first time I experienced this feeling in my legal career. Normally, I would take a few days or a week off after a long trial, and then I was ready to go. I had trouble bouncing back from this case. It was weeks, rather than days, before I was able to thrust myself back mentally and physically into my work.

Finally, I needed to consider with caution the effect that the high-profile case would have on my “legacy.” When it comes to my obituary, I wish for a couple things. First, that it is not written anytime soon. Second, I hope that my representation of Jason Van Dyke is not mentioned in the first sentence. I would prefer recognition for work benefiting many clients with numerous causes, rather than a single case. Nevertheless, I recognized early on—correctly, I assume—that my legal career will be defined to a certain extent by my involvement in the Van Dyke case. Athletes are remembered mostly for their performance in championship games, and the regular season is overlooked. People remember the spectacular rather than the mundane, although it is all of our unnoticed accomplishments that better define our body of work.

Dealing with the Publicity

I learned in the Van Dyke case that the media are definite players in a high-profile case. The media’s presence, influence, and muscle will affect significantly the outcome of the case. There needs to be a plan. High-profile cases require a comprehensive, proactive, and robust media/public relations strategy, which requires working with a professional in public relations. The public perception of your client is critical, especially in cases decided by a jury.

Our system is not perfect. With apologies to the purists who see our judicial system through rose-colored glasses, some cases are decided on factors wholly unrelated to the evidence at trial. This is profoundly true with sensational cases. The court of public opinion renders its decision well before the case goes to trial. The “evidence” presented in the court of public opinion is controlled by the media, and the rule of law does not apply in that court. There are two options: sit on the sidelines and take the punches, or suit up and block some of the punches. If you do it right, you may even be able to strike some blows of your own.

In the case of Jason Van Dyke, he was convicted of being a public enemy before his case went to trial. Within hours after the video was released to the public, protestors spilled into Chicago’s downtown. Every night saw new protests, which began to grow with outsiders coming to Chicago. Shoppers were prevented from entering retail establishments during the busy shopping weekend following the Thanksgiving holiday. World leaders opined on the case. Within days of the video’s release, hundreds of stories were published about my client. All were negative. The video and the story went viral and generated worldwide attention. Before the case was set for trial, there had been literally thousands of media stories about the case. Much of the narrative being reported was false, misleading, or inadmissible in court.

In preparation for our pretrial motion to change the venue, we conducted a comprehensive polling process. We discovered that 86 percent of Cook County residents were familiar with the case. Moreover, 75 percent of those familiar with the case believed that my client was guilty of murder. A full 67 percent believed that Van Dyke “would have a difficult time convincing” them that he was not guilty of murder. The majority believed the defendant could not meet his burden of proof. Our comprehensive survey showed this was the attitude of the public before a single piece of evidence had been entered at trial. There would be no presumption of innocence in this case. We needed to go on the offensive.

Our job would not be easy, given the media’s prolific and powerful narratives on the case. To begin, we were cautious not to violate any rules of ethics or those of the court. There was a gag order entered prohibiting the lawyers from commenting on the case. Still, we were able to frame several stories that provided some mitigation and rebutted some of the false narratives. We were also successful in getting stories published that humanized our client, portraying him as a family man whose best friend was African American. There were stories about my client never firing his weapon before this case, despite working for almost 15 years in some of the most dangerous Chicago neighborhoods. This all was accomplished through a comprehensive strategy, hard work, horse trading, and relationship building.

During the trial, we connected lawyers who would provide fair commentary with the media, to provide commentary on the day’s particular events. As the lead defense attorney, I was thrilled when the court issued the gag order. Dealing with the media is not something taught in law school, and it distracts from focusing on the job in the courtroom. In a perfect world, jury verdicts are based strictly on the evidence. In today’s media-saturated world, information is shared quickly and via multiple sources. The days of potential jurors being stricken because they have some knowledge of a case are gone. A lawyer must seek every legal and ethical advantage available, especially in situations where the client’s starting line is miles behind the opponent.

Preparing for Trial

Preparing for trial in prominent cases has some unique challenges, particularly when the defendant is perceived as a monster. It is difficult to find witnesses. In the event you are successful in finding them, many will be reluctant to testify. Most witnesses do not want to be associated with disliked parties, especially if the testimony could be favorable toward the detested litigant. It gets worse for the abhorred defendant in criminal cases. This holds true for both lay and expert witnesses.

The use of expert witnesses is important, especially because the burden of proof effectively is reversed in most sensational cases. Considering that experts usually are compensated for their testimony, I never had difficulty retaining an expert. This was not the case with Van Dyke. The amount of vitriol toward my client caused numerous experts to decline, even those whose opinions were favorable to my client. Testifying on behalf of Van Dyke was not seen as a savvy business decision for many experts. It required a lot more effort, but I was ultimately able to retain quality experts. In our case, we relied on experts for testimony on use of force, pathology, and mental health, and for jury consultation and animation.

The video in Van Dyke’s case contained a mountain of evidence against my client. It captured a graphic shooting of a young Black man by a white Chicago police officer. It was horrible to watch. We needed to mitigate the damaging images depicted on the video. We attacked the inherent flaws of the video: It was two-dimensional; it distorted images and distances; it did not contain sound; and, critically, it was not from my client’s perspective. Unfortunately, we did not have a camera capturing images from my client’s line of sight. Accordingly, we set out to re-create the crucial events from his perspective through our animation expert.

The animation expert was tasked with re-creating the scene of the shooting, using the perspective of my client. This was no small undertaking. We visited the intersection of the shooting and used drones to capture images. We took precise measurements of various markers on the scene. We incorporated the 911 calls into the re-created animation to demonstrate the heightened state of emotion experienced by my client at the time of the shooting. Animation is important evidence and is expected more and more by a generation of jurors who are technology-driven.

At the end of the day, however, an animation can’t overcome bad facts. After watching the final version of the animation, I was less than overwhelmed. I asked the expert if there was any way to make the re-creation more convincing. The answer was no. The animation was constructed on the facts of the case and was restricted to those parameters. We were able to poke a few holes in the prosecution’s primary evidence, but the prosecution’s video, which had so inflamed the public, proved too powerful to overcome.

Motion practice is critical in cases that have garnered significant media attention. Motion practice can effectively identify and negate some false and misleading media reports. In addition, motion practice can create some sympathy for your client with the judge. Unpopular defendants face an uphill battle at a jury trial and will most likely face sentencing by a judge after the verdict. Motions provide the opportunity to show the judge how unfairly your client was treated and the devastation caused to the defendant and his family.

In the case of Van Dyke, we used motions to show how he was the victim of politics and was thrown under the bus by his leaders. His life, and that of his family, would never be the same. We identified comparable police shootings where criminal charges were declined, despite the striking similarity to the facts of our case. We attached past analyses used by prosecutors to explain why criminal charges were not appropriate in those cases. We applied the analysis in those cases to the facts in our case. We cited dozens of reasons why the decision to decline charges in those cases must apply to the case at issue. Of course, the Van Dyke case was distinctive from all the others on one key point: There was that video. This distinction should not affect the legal analysis, but everyone knew better. However, the arguments in our motions were not lost on the judge. We filed dozens of motions in our case. I understood it was unlikely the judge would dismiss the case, considering the publicity. Nonetheless, I am convinced these motions helped my client at sentencing.

The Benefits of Outside Perspective

I had recognized early on that my client was likely going to be found guilty of something and was going to receive jail time. I addressed this issue with my client and his family well before the trial. It was a difficult conversation for me because it is important for a defense lawyer to sell hope and prove to the client that he had chosen the right lawyer. I never doubted that I would provide my client the best defense possible, but I recognized the magnitude of the situation.

As I prepared the case for trial, I started to believe we were going to win the case outright. After the first week of trial, I had convinced myself that it would be impossible for my client to be found guilty of anything. I drank the Kool-Aid. The weekend before closing arguments, I had a conversation with a trusted colleague, and it was sobering. I questioned whether I needed to spend considerable time in my closing argument addressing the most serious charge of first-degree murder. I felt that the evidence came in very favorably for us on that charge, and I was convinced that no reasonable person could find my client guilty of first-degree murder. I recited in detail for my colleague all the reasons why the evidence could not support the charge of murder one.

My colleague did not dispute my analysis. However, he made it clear that because of the dynamics in this case, the majority, if not all, of the jurors were very much considering a verdict of guilty on the count of first-degree murder. I needed to convince them in my closing argument that my client was not guilty of this most serious charge. It was exactly what I needed to hear. I was too close to the case. I had lived it for years and been immersed in it for weeks during the trial. I knew my case and the evidence better than anyone. However, I needed the perspective of an outsider.

Throughout my career, I have routinely bounced ideas off my colleagues and have found it to be a helpful practice. In a high-profile case, it should be mandatory. Lawyers will become hyper-focused during these cases, which is beneficial in many ways, but it can lead to a certain blindness toward reality. You need a colleague to view the case with a wide lens and read the room, because that helps you properly construct your arguments.

The Trial

The trial phase in some ways is the most normal aspect of a high-profile case. By the time our case got to trial, I felt energized and had a sense of relief. I had tried hundreds of cases, and I was finally in my comfort zone. I could forget about all the external noise and focus all my attention on the trial. I put on my game face and practically forgot about the cameras in the courtroom. It did not feel much different from any other case while engaged in the heat of battle. The rules of evidence applied. Unreliable and irrelevant evidence would be excluded.

However, the high-profile trial is different in some respects. The pressure is high and was at times palpable in the courtroom. Prior to opening statements in our case, I could feel the nervous energy in the room. It was unlike anything I had ever experienced. Everyone was on edge: the lawyers, judge, jury, defendant, sheriffs, court personnel, media—even the audience. This remained the atmosphere throughout the case. It was emotionally and mentally draining for everyone involved.

Finally, it is important to prepare yourself for the stress of a sensational trial. I stayed at a hotel during the trial. This limited my distractions and avoided concerns about morning traffic. I started every day with a trip to the health club. My workouts were not very intense physically, but getting a little sweaty before beginning the day helped me mentally. At the conclusion of each day, our trial team went to dinner, had a drink, and prepared for the next day. I would finish my evenings with my own preparation for the following day and try to get to bed at a reasonable hour. It is easy for trial lawyers to forget about their own well-being because of an intense focus on their case. The pressure of a high-profile trial is overwhelming, and it will cripple those who fail to acknowledge this reality. You must allow for recovery.

At the conclusion of the Van Dyke trial, the jury returned a verdict of guilty on second-degree murder and on 16 counts of aggravated battery. Van Dyke was not convicted on the first-degree murder charge and was found not guilty of official misconduct. The judge sentenced Van Dyke to 81 months in prison, with an opportunity to shorten the period of incarceration based on good behavior. Van Dyke spent 39 months in prison before being put on supervised release in February 2022.