New documents show Smollett lawyers suggested what prosecutors should say in dropping charges

The files also show State’s Attorney Kim Foxx recused herself over false rumors that she was related or connected to Smollett — rumors she called racist.

SHARE New documents show Smollett lawyers suggested what prosecutors should say in dropping charges
Jussie Smollett leaves court after charges were dropped. | Ashlee Rezin/Sun-Times

Jussie Smollett leaves court after charges were dropped.

Ashlee Rezin/Sun-Times

As the surprise hearing at which Jussie Smollett’s felony charges would be dropped neared, the former “Empire” actor’s attorneys haggled with prosecutors over how the stunning decision would be presented in court — with one of Smollett’s attorneys even suggesting what the lead prosecutor should say.

That is among the revelations in a trove of new documents released Friday, and so is this: that Cook County State’s Attorney Kim Foxx had not wanted to recuse herself from the case, and did so reluctantly due to a perceived conflict of interest after rumors arose that she was related to Smollett — inaccurate rumors that she called racist.

In all, the state’s attorney’s office released more than 2,000 pages of documents tied to Smollett’s case after a judge unsealed them. The day before, Chicago police had released the full investigative file from the Smollett case.

Despite the newly released information, the thousands of pages of documents — many of them police investigation reports, emails and text messages — provide a few surprises, but do little to answer key questions that have lingered since Smollett first reported the attack on Jan. 29, or to explain why criminal charges against the actor were dropped abruptly in April, just weeks after he was indicted.

Foxx has faced heavy backlash in the months since then. The release of the documents was accompanied by a statement from her:

“I spoke with Mr. Smollett’s family and others while he was still considered to be the victim of a hate crime in an effort to streamline the case and alleviate any concerns about the integrity of the investigation. False rumors circulated that I was related or somehow connected to the Smollett family, so I removed myself from all aspects of the investigation and prosecution and delegated my authority and responsibility to my First Assistant so as to avoid even the perception of a conflict.

“I regret that my attempts to this end created confusion outside the office. The public’s trust is paramount to our work. That is why today I am releasing material above and beyond what is required. It is my sincere hope that this transparency and the ongoing investigation of the Cook County Independent Inspector General will provide guidance and lessons on how to serve you better. I am sorry that despite the best intentions, our efforts were less than what was required of the moment.”

The newly released documents include emails between Smollett’s lawyers and Risa Lanier, chief of the criminal prosecutions and the lead lawyer on Smollett’s case, over the wording of the few sentences Lanier would utter in court when she told Judge Steven Watkins the charges were dismissed.

Smollett’s lawyer, Patricia Brown Holmes, wanted a few lines that seemed to sound a note of praise for the actor, and cast doubt on the strength of the case against him.

In an email to Lanier, Holmes suggested this wording: that Smollett was a “dedicated citizen of Chicago who volunteers and contributes regularly in the Chicago area community. Toward that end, he has agreed to forfeit the bond to the city.” It continued: “Given the publicity surrounding this case, the public is also reminded that a charge is merely an accusation and that a defendant is presumed innocent unlocked until and unless proven guilty, and that the state has the burden of proving guilt beyond a reasonable doubt.”

Lanier and Foxx’s top deputy, Joe Magats, balked. 

”Off the top of my head, this could be construed as the defendant being able to buy his way out of the case because he is a good guy,” Magats emailed to Lanier. Ultimately, the prosecutors settled on far more neutral wording.

Lanier suggested the language she would eventually read in court so “that way we aren’t overselling the defendant” but also that the closure of his case didn’t come off as a “deal between attorneys, which would indicate guilt.”

Weeks earlier, in other text messages between Foxx and her chief of staff, Jennifer Ballard Croft, Foxx expressed disappointment with the decision to recuse herself from the case just days before Smollett was charged due to “racist” false rumors that she was related to Smollett.

”(Chief Ethics Officer April Perry) told me I had to do it. There were rumors she claims that I was related to or closely connected to the Smolletts. I told her that wasn’t true. She said it was pervasive among CPD and that I should recuse. I thought it was dumb but acquiesced. It’s actually just racist,” the message reads.

Foxx would later offer a different explanation publicly, saying she delegated handling of the case to Magats because she had talked with a relative of Smollett’s when Smollett was considered a victim in a hate crime investigation, not a suspect in a hoax.

The definition of “recusal” became a subject of some internal debate as well, as reporters and prosecutors groups questioned whether the law allows an elected state’s attorney to step aside in a case without a judge appointing a special prosecutor as a replacement.

In an email, two assistants reviewed case law dealing with when recusal is required because of an “actual conflict” or simply because of the appearance of a conflict. A month later, as more questions about Foxx’s recusal became a hot topic after charges against Smollett were dropped with little explanation, her top appellate lawyer, Allan Spellberg, opined that Foxx had recused herself not in a strictly legal sense, but only in a “colloquial” one.

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