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Judge unseals records in Jussie Smollett case

The “Empire” actor’s public comments about the case showed he was not concerned about his privacy after controversial decision to dismiss all charges, the judge ruled.

Actor Jussie Smollett walks into a horde of photographers and reporters as he leaves the Leighton Criminal Courthouse after prosecutors dropped all charges against him, Tuesday morning, March 26, 2019.
| Ashlee Rezin/Sun-Times

A Cook County judge Thursday unsealed records in Jussie Smollett’s criminal case.

Judge Stephen Watkins, who presided over a March hearing where prosecutors abruptly dropped their case against Smollett for allegedly faking a hate crime attack near his Streeterville home, ruled in favor of a request from media groups, including the Chicago Sun-Times, to make public all records in Smollett’s case.

Records in Smollett’s case were sealed, at the request of his lawyers, at the same March hearing where prosecutors dropped all 16 disorderly conduct charges against the actor, with prosecutors at the time stating only that Smollett had agreed to forfeit $10,000 he’d posted as bond and citing his community service history.

Smollett would continue to proclaim his innocence, while State’s Attorney Kim Foxx and her staff characterized the unorthodox resolution of his case as an “alternative prosecution” deal. Police agencies, reading the sealing order to include investigative and other files related to Smollett’s arrest, likewise, had denied public records requests for information.

The court files unveiled in Smollett’s case Thursday were fairly thin and revealed nothing new; the charges in the case were dropped just weeks after he was formally charged.

State law that took effect in 2018 allows for the “immediate seal” of records in cases where charges are dismissed, and Smollett’s lawyers have maintained that the star is entitled to the same privacy rights as any person. But lawyers for media organizations said that the law was meant to protect defendants from having arrests linger on their criminal records, while Smollett’s case was the subject of national news coverage — including appearances by Smollett’s lawyers.

Watkins said that Smollett’s demand for privacy was contradicted by his media appearances before he was charged and after the case was dropped.

“Smollett voluntarily appeared on national television speaking about the incident in detail,” Watkins said, reading from a written court order. “After the March dismissal, he stood in front of numerous cameras... in the courthouse lobby speaking about the case.

“These are not the actions of a person seeking simply to maintain his privacy or simply to be let alone.”

Meanwhile Thursday, Tina Tchen — the Chicago attorney and former chief of staff for Michelle Obama — was served with a subpoena to produce records related to her conversations with Foxx about the Smollett case ahead of a May 31 court hearing.

A server tried to deliver the subpoena to Tchen on Wednesday, but could not get past security in her office building. Benjamin Klubes, the managing partner of the firm where she works, was subsequently authorized to accept the subpoena on her behalf.

In a statement Thursday, Klubes said the process server who went to Tchen’s office building on Wednesday initially “made misrepresentations to building security.”

”As a matter of policy, we do not allow office access to individuals who make misrepresentations to security officials,” Klubes added.

The request for records stemmed from retired Illinois Appellate Judge Sheila O’Brien’s ongoing effort to have a special prosecutor appointed to investigate the state’s attorney’s office’s decision to drop the charges against Smollett.

In a press conference Thursday at the criminal courthouse, O’Brien said she approved of Tchen’s managing partner accepting the subpoena as long as her questions were answered.

Sheila O’Brien speaks to reporters
Retired Illinois Appellate Judge Sheila O’Brien speaks to reporters Thursday about her petition for a special prosecutor to review Jussie Smollett’s criminal case.
Nader Issa/Sun-Times

Responding to questions from reporters, O’Brien said her criticism of Foxx and her persistence in requesting a special prosecutor were not indicative of plans to run for state’s attorney. O’Brien said she primarily is pushing for a special prosecutor out of respect for the “rule of law,” calling Foxx’s involvement in Smollett’s case after her recusal inappropriate.

O’Brien said she is not necessarily looking for renewed charges against Smollett, only for an outside prosecutor to review the case.

The Sun-Times reported in February that Tchen passed Foxx’s number to a relative of the actor before the charges were filed and Smollett was considered a possible victim. Foxx has acknowledged that she tried to persuade Police Supt. Eddie Johnson to turn the investigation over to the FBI after the family member expressed concerns regarding leaked information about the investigation — information that media outlets attributed to “police sources.”

Tchen has previously denied any effort to sway the outcome of the Smollett case. In a statement in March, she said: “Shortly after Mr. Smollett reported he was attacked, as a family friend, I contacted Cook County State’s Attorney Kim Foxx, who I also know from prior work together. My sole activity was to put the chief prosecutor in the case in touch with an alleged victim’s family who had concerns about how the investigation was being characterized in public.”