People v. Van Dyke

• Decision Date: 03 December 2020
• Docket Number: No. 1-19-1384,1-19-1384
• Citation: 178 N.E.3d 263,448 Ill.Dec. 939,2020 IL App (1st) 191384
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jason VAN DYKE, Defendant, (Chicago Public Media, Inc., WLS Television, Inc.; WFLD Fox 32 Chicago, WGN Continental Broadcasting Company, Chicago Tribune Company, L.L.C., and Sun-Times Media, L.L.C., Intervenors-Appellants).
• Court: United States Appellate Court of Illinois

2020 IL App (1st) 191384

178 N.E.3d 263

448 Ill.Dec. 939

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v. Jason VAN DYKE, Defendant,(Chicago Public Media, Inc., WLS Television, Inc.; WFLD Fox 32 Chicago, WGN Continental Broadcasting Company, Chicago Tribune Company, L.L.C., and Sun-Times Media, L.L.C., Intervenors-Appellants).

No. 1-19-1384

Appellate Court of Illinois, First District, FOURTH DIVISION.

Opinion filed December 3, 2020

Brendan J. Healey, of Baron Harris Healey, of Chicago, for appellants WLS Television, Inc.; WFLD Fox 32 Chicago; and WGN Continental Broadcasting Company.

Natalie J. Spears and Gregory R. Naron, of Dentons US, LLP, of Chicago, for appellant Chicago Tribune Company, L.L.C.

Jeffrey D. Colman, Michael T. Brody, Catherine L. Doyle, and Christina T. Lopez, of Jenner & Block LLP, of Chicago, for appellant Chicago Public Media, Inc.

Damon E. Dunn, of Funkhouser Vegosen Liebman & Dunn Ltd., of Chicago, for appellant Sun-Times Media, L.L.C.

Joseph H. McMahon, Special State's Attorney, of St. Charles (Michelle Katz, Assistant Special State's Attorney, of counsel), for the People.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 This appeal involves the denial of access to the media in a criminal case. In the highly publicized criminal case of People v. Jason Van Dyke , the trial court entered an "interim decorum order" to manage trial publicity and the media to ensure that defendant Van Dyke received a fair trial. The criminal defendant is not a party to the instant appeal.

¶ 2 Appellants Chicago Public Media, Inc.; WLS Television, Inc.; WFLD Fox 32 Chicago; WGN Continental Broadcasting Company; Chicago Tribune Company, L.L.C.; and Sun-Times Media, L.L.C. are not appealing the entry of the trial court's interim decorum order in this case—nor could they, since they previously moved to vacate only a modification of that order, and our supreme court swiftly granted their relief within 12 days after they requested a supervisory order.

¶ 3 The order appealed from in this case was entered posttrial, and it ordered certain documents to remain under seal. Three months after its entry and two months after this appeal was filed, the trial court ordered the 18 remaining sealed documents to be released with some redactions. However, the media appellants claim that the trial court lacked jurisdiction to grant any relief at this time.

¶ 4 For the following reasons we dismiss a part of this appeal for lack of jurisdiction, and we affirm in part.

¶ 5 BACKGROUND

¶ 6 This case stems from the shooting death of 17-year old Laquan McDonald by Chicago police officer Jason Van Dyke on October 20, 2014. Defendant Van Dyke was charged on November 24, 2015, with first degree murder and official misconduct.

¶ 7 On January 20, 2016, the trial court issued, without objection, an "Interim Decorum Order" that provided, in full:

"It is the Order of this court that no attorney connected with this case as Prosecutor or Defense Counsel, nor any other attorney working in or with the offices of either of them, nor their agents, staff, or experts, nor any judicial officer or court employee, nor any law enforcement employee of any agency involved in this case, nor any persons subpoenaed or expected to testify in this matter, shall do any of the following:

1. Release or authorize the release for public dissemination any purported extrajudicial statement of either the defendant or witnesses relating to this case;

2. Release or authorize the release of any documents, exhibits, photographs or any evidence, the admissibility of which may have to be determined by the Court;

3. Make any statement for public dissemination as to the existence or possible existence of any documents, exhibits, photographs or any evidence, the admissibility of which may have to be determined by the Court;

4. Express outside of court an opinion or make any comment of public dissemination as to the weight, value, or effect of any evidence as tending to establish guilt or innocence;

5. Make any statement outside of court as to the content, nature, substance, or effect of any statements or testimony that is expected to be given in any proceedings in or relating to this matter;

6. Make any out-of-court statement as to the nature, source or effect of any purported evidence alleged to have been accumulated as a result of the investigation of this matter.

7. This Decorum Order also incorporates Article VIII. Illinois Rules of Professional Conduct, effective January 1, 2010.

This Order does not include any of the following:

1. Quotations from, or any reference without comment to, public records of the Court in the case.

2. The scheduling and result of any stage of the judicial proceedings held in open court in an open or public session.

3. Any witness may discuss any matter with any Prosecution or Defense Attorney in this action, or any agent thereof, and if represented may discuss any matter with his or her own attorney.

Anyone in violation of this court order may be subject to contempt of court."

¶ 8 On February 3, 2017, the trial court modified the interim decorum order with an order that stated, in full:

"To be in compliance with the decorum order entered January 20, 2016:

IT IS HEREBY ORDERED that any documents or pleadings filed in this matter are to be filed in room 500 of the George N. Leighton Criminal Courthouse only. This order applies to the defense, special prosecutor, and any other party that may occasionally become involved in these proceedings. This procedure will remain in effect unless and until otherwise ordered by the court."

¶ 9 On March 8, 2018, the media appellants were granted leave to intervene in the Van Dyke case.

¶ 10 On May 11, 2018, they moved for a supervisory order in the Illinois Supreme Court to vacate the February 3, 2017, order. The media appellants' proposed supervisory order asked for the following relief:

"(1) That the February 2017 Decorum Order is vacated;

(2) That going forward, all motions, briefs, pleadings, and other judicial documents in this case shall be filed publicly in the Circuit Court Clerk's Office, subject to any properly supported motion to seal; and

(3) That in ruling on any such future motion to seal judicial records, or any motion to reconsider [the trial court's] earlier sealing of any previously filed judicial records, [the trial court] shall adhere to the governing First Amendment standards and enter specific, on-the-record judicial findings supporting suppression under those standards, or release such records in whole or in part, consistent with consideration of the least restrictive alternatives to complete suppression."

¶ 11 Twelve days after the media appellants filed their motion, our supreme court "[a]llowed" it and issued a supervisory order on May 23, 2018, that stated, in full:

"This cause coming to be heard on the motion of movants, Chicago Public Media, Inc., et al, due notice having been given to respondent, and the Court being fully advised in the premises:

IT IS ORDERED: Motion by Movants for a supervisory order. Allowed. The Circuit Court of Cook County is directed to vacate its February 3, 2017, order, directing that all documents and pleadings shall be filed in Room 500 of the George N. Leighton Criminal Courthouse only. All documents and pleadings shall be filed in the circuit clerk's office. The parties may move to file any document under seal." Chicago Public. Media, Inc. v. Hon. Vincent M. Gaughan , No. 123569 (Ill. May 23, 2018).

¶ 12 On May 24, 2018, the trial court entered an order (1) vacating its February 3, 2017, order; (2) requiring all filings to be made with the clerk of the court, with courtesy copies provided to the trial court on the same day; and (3) requiring a "filing party" to "first notify the opposing party of its intention" to file a document and "the nature of the document" to be filed in order "to afford the other party fair opportunity to request the document be sealed."

¶ 13 On August 7, 2018, the media appellants moved the supreme court again for a supervisory order, this time asking for an order directing the trial court (1) to unseal 35 documents sealed prior to the supreme court's May 23, 2018, supervisory order, unless the parties filed new and publicly filed motions to seal these documents, and (2) to vacate the trial court's May 24, 2018, order and require the public filing of all future requests under seal. On September 12, 2018, the supreme court issued an order stating that the media appellants' "motion for supervisory order is dismissed."¹

¶ 14 Defendant Van Dyke's jury trial began on September 17, 2018, and his jury returned a verdict on October 5, 2018, finding him guilty of second-degree murder and aggravated battery with a firearm.

¶ 15 On October 26, 2018, the media appellants filed a motion titled a "Post-Trial Motion to Unseal Court Records," seeking to unseal court records then under seal and citing in support the Illinois Supreme Court's recent decision on October 18, 2018, in People v. Zimmerman , 2018 IL 122261, 427 Ill.Dec. 851, 120 N.E.3d 918 (denying media intervenors access to pretrial motions in a criminal case). Specifically, the media appellants sought the release of 99 documents, which they described on an attached list. To the extent that any records contained any sensitive information, the media appellants argued that they should be redacted. On January 14, 2019, the trial court continued the media appellants' motion for unsealing until after sentencing. Defendant Van Dyke was sentenced on January 18, 2019, and he filed a notice of appeal on February 8, 2019.²

¶ 16 On February 28, 2019, Brandon Smith filed a motion as a "third-party journalist,"³ seeking to intervene and to modify the 2016 interim decorum order, in order to permit the release of certain documents by the Chicago Police Department. The department had denied part of his Freedom of Information Act (FOIA) request based on the 2016 order. See 5 ILCS 140/1 et seq. (We...