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

Foxx thought 16 counts against Jussie Smollett was ‘overcharging’

Cook County State’s Attorney Kim Foxx thought her office may have been “overcharging” Jussie Smollett in his alleged hate crime case, and compared the 16 felony counts facing the “washed up actor” to the 10 counts of sex abuse filed against R. Kelly.

Foxx texted Joseph Magats, her top deputy whom she put in charge of the Smollett case after recusing herself, the day a grand jury handed up the 16-count indictment against Smollett to make an unfavorable comparison to the counts against Kelly filed just weeks earlier.

“Soo…. I’m recused, but when people start accusing us of overcharging cases… 16 counts on a Class 4 becomes exhibit A,” Foxx texted the night the indictment was announced.

“Yes I can see here that can be seen as excessive,” Magats replied.

“(A pedophile) with 4 victims 10 counts. Washed up celeb who lied to cops, 16. On a case eligible for deferred prosecution I think it’s indicative of something we should be looking at generally,” Foxx continued. “Just because we can charge something doesn’t mean we should.”

The messages were among nearly 200 pages of screenshots of texts exchanged between Foxx and her top staff, included alongside more than 3,600 pages of emails — and a 36-page spreadsheet detailing records the office determined could not be released to the public because records in Smollett’s case were sealed the day the charges were dropped.

In all, the hundreds of emails released— many of them showing emails exchanged between Foxx’s staff and frantic reporters— don’t shed much light on how Smollett came to have all charges against him dropped abruptly at a hearing that was not on the court docket last month. Smollett, who was accused of hiring two men to fake an attack on him near his Streeterville home, forfeited $10,000 he’d posted for bond to the city of Chicago, and left the courthouse proclaiming his innocence. City officials since have filed a civil lawsuit, seeking to collect more than $130,000 spent on police overtime for investigators handling the case.

Citing a court order sealing all records in the case, the office did not turn over a flurry of emails exchanged among Criminal Division chief Risa Lanier and Smollett’s Chicago-based attorney Patricia Brown Holmes over about three days before the charges were dismissed, nor hundreds of other emails and text messages requested by the Chicago Sun-Times and other media organizations.

Foxx announced to her staff that she was recusing herself from the case on Feb. 13 and had turned Smollett’s prosecution over to her top deputy. But a week later the head of the State’s Attorney’s Appellate Division issued a memo stating his opinion that if Foxx recused herself, Foxx didn’t get to pick who took over the prosecution, and it was up to the court to appoint a special prosecutor.

Nonetheless, charges against Smollett were announced the next day, and a grand jury indictment was handed up two weeks later. Foxx’s office has since said that when an interoffice email to senior staff stated that Foxx was “recused” in the case, the term was used in a colloquial, not a legal definition.

Foxx had stepped aside because of conversations she’d had with a relative of Smollett’s in the weeks before Smollett was charged. Foxx said the relative was concerned about leaks in the case that came from anonymous sources within “law enforcement” or “police,” and Foxx said she had asked CPD Supt. Eddie Johnson to turn the case over to federal investigators.

It appears that CPD officials got far less input into the decision to drop charges against Smollett. Text messages would appear to show Foxx’s top deputy, Magats, reached out to Johnson’s chief of staff, Robert Boik, the morning of the hearing where Smollett’s charges were dropped.

Foxx texted Magats that morning to tell him she’d just gotten a call from Johnson, and that the superintendent seemed “satisfied” with her explanation that Smollett’s deal was “essentially deterred (sic) prosecution. Paying $10k restitution to city, and completed community service.”

Johnson, though, was furious over the decision and publicly blasted it — along with Mayor Rahm Emanuel.

While the prosecutors have the power to drop charges for any reason, Smollett’s deal did not, in fact, conform to state laws on deferred prosecution, and Smollett appeared to have spent two days volunteering with Rainbow PUSH.

The Cook County state’s attorneys’ office did not immediately respond to a request for comment.

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