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Kim Foxx: We would have convicted Jussie Smollett if case went to trial

Cook County State’s Attorney Kim Foxx | Ashlee Rezin/Sun-Times file photo

Cook County State’s Attorney Kim Foxx on Wednesday defended her office’s decision to drop all charges against “Empire” star Jussie Smollett but said prosecutors had enough evidence to convict the actor of faking a hate-crime attack on himself.

Foxx began a string of interviews with local media, as Smollett’s lawyers took to the airwaves to declare Smollett’s innocence following an unusual, hastily called hearing Tuesday at which prosecutors dropped 16 felony counts tied to the alleged hoax attack.

Foxx said that the deal, which essentially wipes Smollett’s record clear, was not a sign that the prosecution case was weak or that Smollett was innocent, and said similar low-level felony defendants are cut the same breaks.

“The notion that this somehow exonerates him or that the prosecutors somehow believed he was innocent is very frustrating to [my] idea of alternative prosecution,” a hoarse-voiced Foxx said late Wednesday in an interview with The Chicago Sun-Times. “But I understand that [Smollett’s lawyers] have a client, and they have a spin.”

Foxx, who recused herself from the case just over a week before Smollett was charged because of conversations she’d had with a relative of the actor, pointed to the $10,000 bond that Smollett turned over to the city of Chicago, a sum equivalent to the maximum fine for the disorderly conduct charges he faced. The prosecutor, who took office in 2016 after campaigning on a reform platform, said she believed the evidence against Smollett would have convinced a judge or jury to find him guilty.

“I believe based on the information that was presented before the grand jury, based on what I’ve seen, the office had a strong case … that would have convinced a trier of fact,” she said.

Foxx’s First Deputy State’s Attorney Joseph Magats was the final decision-maker on the case after Foxx stepped aside, and informed Foxx about the planned disposition of Smollett’s case Monday afternoon, she said. An “emergency hearing” was held Tuesday morning, with no notice to Chicago Police. Magats required the payment to the city from Smollett in agreeing to drop the charges, Foxx said.

Magats “can’t say, ‘In exchange for dropping the charge, you have to give a $10,000 bond forfeiture … if you believe he’s innocent,” Foxx said. “You can’t ask an innocent man for $10,000.”

Foxx compared the conclusion of Smollett’s case — which also included the actor performing several hours of community service — to “alternative prosecutions” offered to some 5,700 offenders charged with low-level, non-violent crimes during the last two years. Even if found guilty at trial, Smollett, who had no prior felony convictions, likely would not have faced any jail time, Foxx said.

“Someone with no background on a Class 4 felony, we’re not getting any prison time no matter how notorious the case,” Foxx said. “What we know is, he was not going to prison… he was going to get probation or community service.”

Smollett likely wouldn’t have gone to jail, but the way his case was concluded was different from “alternative prosecutions” typically pursued in Cook County, said Richard Kling, an IIT-Kent Law School professor with a large roster of clients facing charges in the same courthouse where Smollett had held his triumphant press conference Tuesday. Deferred prosecutions or pre-trial diversion programs typically require some admission of guilt, a formal arrangement for community service hours and a period of probation before charges or dropped and a record can be expunged.

“In my 48 years of practice, I certainly have never seen a deferred prosecution done like that,” Kling said.

And there has been no admission of culpability; in fact Smollett and his attorneys have stepped up their claims that Smollett is innocent. His lawyer, Tina Glendian, maintained in an interview with ABC News Wednesday that Smollett had truthfully described an attack that took place a few blocks from his Streeterville home in the early morning hours of Jan. 29.

“If [prosecutors] believed the charges, they would never have dropped the case,” Glendian said. “We were ready to fight the charges. It was their decision to discontinue this matter, so I think that speaks volumes.”

But those claims of innocence led Mayor Rahm Emanuel — who also did a round of national TV interviews Wednesday — to demand more answers from prosecutors.

“The person who committed that hoax is walking around saying `I’m innocent.’ I would like a resolution in the sense of accountability and responsibility in the system, of who is right,” he said.

“He’s either a person who pulled a hoax … or he is totally a victim and innocent. But both can’t be right. And the city of Chicago deserves an answer,” the mayor said.

Despite Foxx’s defense, questions about the case continued to swirl, particularly because she had earlier recused herself after talking several times with a relative of Smollett who was concerned about the investigation by the Chicago police. Foxx said Wednesday her last conversation which came more than a week before Smollett was charged with faking the attack; at the time, Smollett was considered to be the victim of a hate-crime attack.

Tina Tchen, a Chicago lawyer and Democratic fundraiser who once served as chief of staff for First Lady Michelle Obama, had put Foxx in touch with the unnamed relative of Smollett, according to text messages released earlier this month in response to a public records request by the Sun-Times. The messages indicate Foxx contacted Chicago Police Supt. Eddie Johnson and asked him to turn the case over to federal investigators.

Foxx said she talked with Smollett’s relative about concerns that information about the attack investigation was being leaked, and their belief that the FBI, which was investigating a threatening letter that had been mailed to the actor, was less prone to making details of the investigation public.

“I didn’t want any conversations with that relative [once] I knew that there was any potential that [Smollett] would be a suspect,” Foxx said. She told another interviewer that she regretted having been in touch with the relative.

Foxx also said Wednesday that the court file should remain public; she believed the only reports that would be sealed were arrest records. But Judge Steven Watkins had already granted a defense request for the “immediate sealing of the criminal records.”

A Chicago Sun-Times reporter was turned away from viewing the case file immediately after the hearing Tuesday. Scanned records of the case were removed from the digital database maintained by the clerks’ office by Tuesday afternoon.

By Wednesday morning, there was no record that the case had ever existed, and clerk’s office staff said the case file had been moved into storage.

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