Smollett Case: Special Prosecutor Finds ‘Abuses of
Discretion’
An investigation has found that the state’s attorney’s office did not violate the law in its handling of the case against the actor Jussie Smollett, but it cited substantial “operational failures.”
By Julia
Jacobs
·
Aug. 17, 2020 Updated 2:09 p.m. ET
o
A special
prosecutor tasked
with reinvestigating the case against Jussie Smollett has found that the Cook
County state’s attorney’s office did not violate the law in its handling of the
case but did abuse its discretion in deciding to drop charges and put out false
or misleading public statements about why it did so.
The findings, published in a news
release on Monday, conclude the investigation by the special prosecutor, Dan K.
Webb, who was appointed last year after a judge ruled that the state’s
attorney, Kim Foxx, had not properly handled the Smollett case the first time.
In February, Mr. Webb announced that a
grand jury had revived the criminal case against Mr. Smollett, indicting
him on charges that he
lied to the police in
connection with an alleged
hate crime attack
against him.
Another part of Mr. Webb’s
investigation involved determining whether any person or office engaged in
wrongdoing while handling the case. In the news release, Mr. Webb’s office said
that it unearthed evidence that supports “substantial abuses of discretion and
operational failures” by the state’s attorney’s office in prosecuting the
initial case in 2019.
Mr. Webb’s office
found that lawyers who work or had previously worked in the office’s criminal
division were “surprised” or “shocked” by the terms under which prosecutors dropped
the charges against Mr. Smollett, just a month after his arrest. It also
determined that prosecutors only informed the Chicago Police Department about
the dismissal of the case minutes before a court hearing and did not consult
with the department on the terms of the dismissal — under which Mr. Smollett
was required to complete community service and forfeit the $10,000 bond that
had released him from jail. He was not required to plead guilty.
The special prosecutor found that the
state’s attorney’s office, in explaining its decision to drop the charges,
“breached its obligations of honesty and transparency” by making false
statements such as its claim that Mr. Smollett was just one of thousands of
defendants whose case had been referred for alternative prosecution. The
state’s attorney’s office could not identify any specific cases on which it
relied in deciding to drop the case against Mr. Smollett, who had been accused
of paying two acquaintances to attack him as part of a hoax, the special
prosecutor said.
The special prosecutor’s office is
asking a judge to allow it to release its full summary of its final
conclusions.
In a statement on Monday, the office
led by Ms. Foxx, who is up for re-election this fall, said that the findings
put “to rest any implications of outside influence or criminal activity” on the
part of its employees.
But the office said that it
“categorically rejects” the special prosecutor’s assessment that it made
“abuses of discretion” in its communications to the public. Any implication
that the office made statements that were knowingly inaccurate is untrue, the
statement said.
Some of the statements that Mr. Webb described as false related to Ms. Foxx’s decision to recuse herself from the Smollett case to avoid any perception that she had a conflict of interest after disclosing that she had communicated with Mr. Smollett’s representatives when he was still considered a victim. Her decision to hand the case to her deputy rather than someone outside her office has been the subject of scrutiny by legal experts, and both Mr. Webb and the judge who appointed him determined it to be incorrect procedure.
Once Ms. Foxx
realized that she had not properly recused herself, Mr. Webb’s office said, she
and her office “made the decision to ignore this major legal defect seemingly
because they did not want to admit that they had made such a major mistake of
judgment.”
Mr. Webb’s office found that Ms. Foxx
also made a false public statement about her communication with Jurnee
Smollett, Mr. Smollett’s sister, who is also an actress. Ms. Foxx had said
publicly that she had ceased communication with Ms. Smollett after she learned
that Mr. Smollett had become a suspect, the special prosecutor’s office said,
but she continued to text Ms. Smollett and speak with her by phone for five
days after that.
Even after Ms. Foxx passed the case
along to her deputy, the special prosecutor’s office found that she was
provided with frequent updates about the prosecution.
The false statements that Mr. Webb says
were disseminated by Ms. Foxx and her office could be ethical violations as
established by an Illinois Supreme Court precedent, his office said. Mr. Webb’s
office clarified that it has no authority to determine whether the statements
are violations but would be referring its findings to a disciplinary
commission.
A lawyer for Mr.
Smollett, Mark Geragos, said that he believed that the timing of the
announcement seemed “politically motivated” against Ms. Foxx, saying, “This is
nothing more than an attempt to take down a young Black woman who doesn’t fit
in with the white power structure.”
Mr. Webb’s office did not immediately
respond to that allegation.
The findings draw to a close another
chapter of the legal proceedings that have resulted since Mr. Smollett reported
to the police in January 2019 that two
men had attacked him,
poured bleach on him, called him racist and homophobic epithets and placed a
noose around his neck. Mr. Smollett’s acquaintances — the brothers Olabinjo and Abimbola Osundairo — had told the
police that the actor had paid them $3,500 to orchestrate the attack. Mr. Smollett
has maintained his innocence.
Mr. Webb’s office noted that while its
investigation has concluded, Mr. Smollett will stand trial for the charges from
February. The trial date has not yet been scheduled and will likely be delayed
for months because of the coronavirus pandemic.
In its news release, the special
prosecutor’s office said that it had focused its investigation on whether
employees of the state’s attorney’s office might have violated criminal
statutes and committed obstruction of justice, perjury or bribery. The office
said it did not have evidence to bring such charges.
Also at the center of the inquiry into
Ms. Foxx’s handling of the case was her communication with Ms. Smollett, as
well as Tina
Tchen,
a former chief of staff to Michelle Obama, who had emailed Ms. Foxx saying that
the actor’s family had “concerns about the investigation.” The Chicago Tribune reported that Ms. Foxx then told
Ms. Tchen, and separately a member of Mr. Smollett’s family, that she had asked
the police superintendent to request that the F.B.I. take over.
Although Mr. Webb’s
office determined that Ms. Foxx’s conversations with these people — as well as
with Sherrilyn Ifill, the president of the NAACP Legal Defense and Educational
Fund — did lead her to request that the F.B.I. take over, it wrote that the
request was “not improper” and did not substantively influence the prosecution.
