A Judge Just Let A Cop Walk After A Deadly Shooting. Legal Experts Say The Reasoning Is ‘Incredible.’

A photographic display during a protest outside the Chicago Police headquarters before the announcement of the grand jury decision not to indict police officer Darren Wilson. CREDIT: AP PHOTO/CHARLES REX ARBOGAST
A photographic display during a protest outside the Chicago Police headquarters before the announcement of the grand jury decision not to indict police officer Darren Wilson. CREDIT: AP PHOTO/CHARLES REX ARBOGAST

Late Monday, a Cook County judge acquitted Chicago police officer Dante Servin of several homicide-related charges for the fatal shooting of an unarmed woman standing outside with some friends near his home. It was the first time in 15 years that a police officer had been charged in Chicago for a fatal shooting. And the courtroom attendees exploded in outrage as Judge Dennis Porter announced Servin was not guilty on all charges for killing 22-year-old Rekia Boyd.

But Porter’s ruling was particularly confounding because of bizarre reasoning that some legal experts are calling “incredible.” In an opinion that lamented Servin was never charged with the more severe crimes of first- and second-degree murder, Porter suggested he was acquitting Servin and sending him home without any punishment because the involuntary manslaughter charge against him was actually not severe enough.

Servin was off duty when he fired the shots. He encountered a group gathered in an alley while driving through in his Mercedes sedan. As he drove the wrong way down the alley after an altercation, he said he thought he saw one of the men reach for a gun and fired several shots over his shoulder at individuals who had their backs to Servin. Servin hit 22-year-old Rekia Boyd in the back of the head, killing her.

“He was constantly shooting,” Icka Beamon testified, who was in the alley that night and ran for cover. “He was trying to kill all of us.”


Porter, the Cook County judge presiding over the case, agreed that Servin was acting intentionally when he fired his gun. In fact, he said in his ruling, Illinois courts have long held that when a defendant “intends to fire a gun, points it in the general direction of his or her intended victim, and shoots, such conduct is not merely reckless,” but “intentional” and “the crime, if any there be, is first degree murder.”

In a bizarre turn of reasoning, Porter suggests that since the first-degree murder charge is not on the table, and the crimes with which he was charged — involuntary manslaughter and reckless discharge of a gun — require that Servin was reckless, Servin cannot be convicted of any crime at all. Lamenting that both sides might “benefit from some closure on this question,” he nonetheless concludes that the law compels him to acquit Servin of all charges.

Porter’s reasoning doesn’t clearly square with several fundamental principles of criminal law, according to legal experts.

The concepts of “recklessness” and “intent” are criminal law concepts that describe what is an element of almost every criminal offense — state of mind. In homicide cases, for example, state of mind (known as mens rea) is directly correlated to the severity of the crime — offenses that require mere “recklessness,” or “consciously disregard[ing] a substantial and unjustifiable risk” — typically carries a lower punishment than murder crimes, which require the prosecutor to prove intent, because intentional acts assume a higher level of malice.

Porter asserts that a defendant who does something intentionally could not have also been reckless, and thus should not be convicted of anything at all. But this distinction between recklessness and intent “really doesn’t make any sense at all,” University of Illinois law professor Marareth Etienne told ThinkProgress. At least under the national criminal law standard known as the Model Penal Code that all first-year law students are taught in Criminal Law 101, a higher state of mind such as intent “always proves a lower level,” in this case, recklessness.


Recklessness “just means that you were aware of a risk and you didn’t take the proper precaution. So clearly if you shoot at somebody and you shot in a crowd you’re aware of a risk that they’re gonna die,” Etienne said.

“This is incredible!” University of Illinois Director of Trial Advocacy J. Steven Beckett said. “It appears to me that a lesser included offense was ignored because the proof of the greater offense was obvious. This put prosecutorial decision-making under scrutiny beyond anything imaginable.” In other words, the prosecutors were punished for not having charged Servin with a more severe crime. Even more remarkable, Porter came to this decision in what is known as a “directed verdict” before he even heard the defense’s arguments.

“When a motion for directed verdict is made by the defense, the evidence must be considered in the light most favorable to the prosecution,” Beckett points out. “What the judge did here appears to be just the opposite!”

Etienne points out several adverse consequences that would result if Porter’s understanding of the law prevailed. A defendant charged with involuntary manslaughter could get on the stand and make the very argument Porter now makes: I am not guilty of a crime of recklessness because I did this on purpose. “And by the way my trial has started so double jeopardy. You can’t go back and charge me with an intentional killing.”

Double jeopardy is the constitutional notion that an individual can’t be charged twice for the same offense, and legal experts seemed to agree that double jeopardy means Porter’s ruling can’t be appealed, and that prosecutors from the same jurisdiction can’t file charges a second time around.

The other adverse consequence is that most of the plea deals prosecutors now make with defendants wouldn’t make much sense: A defendant is charged with first-degree murder, for example, but pleads guilty to the lesser offense of involuntary manslaughter. “And that’s done all the time,” said Etienne.


Porter does cite several Illinois cases for his conclusion. These cases primarily deal with the issue of jury instructions in the reverse situation when someone charged with a more severe intent crime wants a jury to consider a lesser offense. A murder defendant, for example, wants the judge to also instruct the jury that they can find the defendant guilty of the lesser crime of involuntary manslaughter rather than murder. The judge rejects the defendant’s argument, on the rationale that this is a crime of intent, and not a lesser crime of recklessness. But Etienne points out that this is a very different legal argument. “To dismiss a case where recklessness was charged because intent was proven. That’s a different question,” she said, while conceding the possibility that Illinois courts would come out a different way on this question.

Timothy P. O’Neill, a professor at John Marshall Law School in Chicago, questions Porter for another, different reason.

“I respect Judge Porter, but at the same time I think he maybe made the case a little bit more difficult than it had to be,” O’Neill said. Even if Servin intended to fire the gun, he seemingly didn’t intend to hit Boyd. He instead intended to hit the man whom he believed was pulling a gun out of his waistband.

“You can do intentional acts and still be found guilty of involuntary manslaughter based on results,” O’Neill said.

Both O’Neill and Etienne agreed that Servin could have, and perhaps should have, been charged this time around with murder — a crime that requires intent.

“But that does NOT mean that it is legally impossible to also find it could have been involuntary manslaughter: the defendant committed voluntary acts that recklessly killed an unintended victim,” O’Neill said. “That is involuntary manslaughter.”