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Kim Foxx calls evidence ‘uncertain’ in latest twist of strange Smollett saga

Jussie Smollett leaves court after charges were dropped. | Ashlee Rezin/Sun-Times

Two days after insisting her office could have secured a conviction against “Empire” star Jussie Smollett, Cook County State’s Attorney Kim Foxx apparently contradicted herself with an op-ed published Friday night claiming a courtroom win was “uncertain.”

In a letter to the Chicago Tribune published under the headline “I welcome an outside review of how we handled the Jussie Smollett case,” Foxx wrote that there were “specific aspects of the evidence and testimony presented to the office that would have made securing a conviction against Smollett uncertain.

“For a variety of reasons, including public statements made about the evidence in this case, my office believed the likelihood of securing a conviction was not certain,” Foxx wrote in the piece, in which she also welcomed “an outside, nonpolitical review of how we handled this matter.”

That was an apparent backtrack from what she told the Chicago Sun-Times on Wednesday, when she said her office “had a strong case.”

It was the latest twist in a two-month saga that came to a head last week with Smollett walking out of the Cook County Criminal Courthouse free and clear of charges tied to an alleged hoax hate-crime attack. Condemnation of the deal that closed his case and wiped out his record has come swiftly and from nearly all quarters.

Defense attorneys who have spent decades working the musty courthouse halls at 26th and California, leaders of a national and state-level organization for prosecutors, President Donald Trump and denizens of the internet all found fault with decisions by the state’s attorney’s office during the markedly brief course of Smollett’s prosecution. Here’s a breakdown of some of the seemingly strange elements of Smollett’s case.

An unusual deal (or no deal?)

At a hearing Tuesday, prosecutors dropped all 16 counts of disorderly conduct against Smollett, citing his “volunteer service” in the community and his willingness to forfeit his $10,000 bond to the city of Chicago. Smollett’s lawyer denied there was any “deal,” but prosecutors referred to it as an allowable arrangement under Illinois’ deferred prosecution laws.

Smollett likely was never going to serve jail time — the charges were the lowest level of felony in state law, and he had no prior felony convictions — but typically, a deferred prosecution includes community service hours that are better documented than the time Smollett spent at Rainbow PUSH Coalition headquarters the Saturday and Monday before his case was dropped. Typically, he also would be required to admit his guilt, fulfill a period of probation and pay restitution. Smollett walked out of the courthouse roughly a month after his arrest, and he and his lawyers have been proclaiming his complete innocence ever since.

Defense attorney Dave Gaeger, one of a handful of lawyers who happened to be in the courtroom waiting on other cases Tuesday, conceded that cases can be dismissed in less formal deals with prosecutors, but was shocked that such a high-profile case would be dropped as if it were just a low-level felony prosecutors wanted to clear off the docket.

“Have I had it happen for my clients? Yes. But did those cases use up hundreds of hours of police resources and get anywhere near this level of media attention? No,” he said. “You want a state’s attorney to be compassionate and believe in rehabilitation, but in (Smollett’s) case, you have to expect more transparency.”

A hasty hearing

Smollett’s appearance in court on Tuesday was not announced to the press and didn’t make it onto the clerk’s calendar, and prosecutors did not notify Chicago Police officials that the charges were going to be dropped. That outraged CPD Supt. Eddie Johnson and Mayor Rahm Emanuel, who immediately slammed the decision.

A handful of reporters saw Smollett walk into the courthouse lobby; others didn’t learn of the hearing until Smollett’s legal team emailed a press release. The only hearing scheduled in the case was set for May 2; a judge was to rule then on whether to allow TV cameras to broadcast the proceedings. Smollett’s case was dismissed a month after his arrest, and two weeks after his formal indictment by a grand jury — exceptionally fast for a criminal case in Cook County.

Prosecutors stand by their case

It’s not unusual for prosecutors to spot critical flaws in a case after charges are filed — alibis emerge, witnesses turn out to be unreliable, investigations can be tainted — but Foxx and her deputies, not to mention the CPD, were adamant that was not the case.

Records have been sealed

This, according to Judge LeRoy Martin Jr., chief of the Criminal Division, is not so “nefarious.”

State law allows a defendant to have his records sealed, immediately, if they are acquitted or have charges dismissed. Martin insisted it would take months for Smollett to have his records expunged, and said even expunged case files are not destroyed in Cook County.

Smollett’s lawyers have yet to file to expunge his records, though if they did file for expungement, there could be formal objections. All records of Smollett’s case were placed under seal immediately after Tuesday’s hearing, and even computer records of the case began disappearing from the clerk’s computer, which again, was swift action for the county courts.

Kim Foxx’s recusal

A week before Smollett was charged, Foxx recused herself from Smollett’s case, because she had conversations with an unnamed relative of Smollett’s that took place when Smollett was still being considered the victim of a hate crime. The fact that Smollett’s relative got Foxx’s phone number from a prominent Democratic fundraiser who worked as Michelle Obama’s chief of staff also has added fuel to conspiracy theories.

Foxx announced her recusal publicly the day before Smollett’s arrest, but an email from her chief ethics officer shows she turned the case over to First Assistant State’s Attorney Joe Magats a week earlier. The Illinois Prosecutors Bar Association issued a statement opining that the entire state’s attorney’s office should have been replaced with a special prosecutor, and a national prosecutors’ association likewise said “best practices” required recusal of the entire office.

Northwestern Law School professor Steven Lubet, a legal ethics expert, said Foxx herself was the only staffer who needed to stand aside in the case.