Cook County State’s Attorney Kim Foxx and her top deputies repeatedly made procedural and ethical missteps as they mishandled the Jussie Smollett case and then tried to mislead the public as the office struggled to respond to outrage over the decision to dismiss charges against the “Empire” actor, according to Special Prosecutor Dan Webb’s full report.
Webb, who earlier this month led the prosecution team that saw Smollett convicted of lying to Chicago police about staging a 2019 hate crime, found no evidence of criminal conduct or influence peddling behind the controversial non-prosecution deal extended to the actor just weeks after his arrest.
But in the more than 60 pages summarizing interviews with current and former state’s attorney’s staff members and 100,000 pages of documents, Webb also offered little to explain how such a high-profile case nearly ended with the star getting off with an unprecedentedly light slap on the wrist.
When interviewed by Webb’s team, Foxx told investigators she herself was surprised by the deal made by her prosecutors and that Smollett was not going to be required to admit guilt or do community service after the charges were dropped.
The report said Foxx was under the impression “they wanted this guy [Mr. Smollett] out of town” to prevent the “flurry of activity” his presence brought to the courthouse and “being able to have the case resolved would eliminate throngs of people who were coming to court.”
“When asked by (the special prosecutor) if she agreed that trying to get Mr. Smollett out of town due to press attention might not be the right reason to come up with a disposition, she said that she agreed,” the report also stated. “She further explained, ‘I think the kind of negotiating, let’s get rid of that guy [Mr. Smollett] at the expense of really what his actions did to the City shortchanged, I think, the accountability that the City deserved.’”
A hearing before Judge Michael Toomin on Monday marked the third time Webb sought to make public his full report on the state’s attorney’s office’s handling of the decision to dismiss a 16-count indictment against Smollett. Toomin more than a year ago opted to leave the report under seal but reversed that ruling Monday, noting that Smollett’s trial was now over.
Webb’s report states that Foxx and her office committed “substantial abuses of discretion,” and pointed to discord within the office.
Staff in Foxx’s office gave conflicting accounts of the decision making around Smollett’s case, including key details of who negotiated terms of Smollett’s deal and why those terms diverged from those offered thousands of other defendants.
Foxx and her spokespeople made repeated statements comparing Smollett’s treatment to nearly 6,000 low-level defendants who had entered “alternative prosecution” agreements with prosecutors, though the office was unable to find any comparable deals.
In a statement Monday, the state’s attorney’s office said “it remains committed to honesty and transparency,” adding that it “respectfully” disagrees with Webb’s “findings of abuse of prosecutorial discretion.”
“Though State’s Attorney Kim Foxx was not involved with the initial disposition of the Smollett case, she and the CCSAO remain steadfast that the office acted within its broad prosecutorial discretion...A prosecutor’s discretion is as broad as any in the law, and differences of opinion as to how a case was handled do not signify an abuse of discretion. Finally, it is important to emphasize that the OSP did not find any criminal activity or undue influence on the part of the State’s Attorney or the CCSAO.”
Retired judge Sheila O’Brien in 2019 petitioned to have a special prosecutor appointed to investigate Smollett’s case, efforts that led to Webb’s appointment and to Smollett being recharged. Asked Monday if she felt the details in Webb’s report would restore confidence in the criminal justice system in Cook County, O’Brien was blunt.
“(The report) shows that Kim Foxx is a liar and her office is chaos,” O’Brien said. “She should resign.”
Toomin appointed Webb six months after Foxx’s office dropped Smollett’s case, charging the veteran attorney with two tasks: Review the evidence and decide whether Smollett should be charged again for lying to police about the attack and probe Foxx’s office for any misconduct related to the dismissal of the case.
The report released Monday shows that Foxx was getting regular updates on Smollett’s case even after she “recused” herself, even after her chief ethics officer overheard Foxx discussing the case with Joseph Magats, her top deputy, and warned her the conversation was improper. Ethics Officer April Perry also said she told Magats that terms of Smollett’s deal did not meet the requirements of the office’s Deferred Prosecution Program. Perry resigned a few weeks after Smollett’s deal went through.
Foxx and her staff also were aware that her decision to delegate decision making in the case to Magats by naming him the “acting State’s Attorney” in matters related to Smollett was not a legal “recusal.” If there were a conflict of interest, the entire office would have to be replaced by a court-appointed special prosecutor.
According to the report, Magats told Webb’s investigators that another top deputy, Risa Lanier, chief of the Criminal Prosecutions Bureau, handled negotiations with Smollett’s legal team. Lanier told Webb’s team that Magats conducted the negotiations.
The two also disagreed on whether Smollett was offered the chance to enter a pre-trial diversion program that would have required him to complete a lengthy probation and complete community service in order to have charges dropped. Smollett’s case was dismissed with the actor making no admission of guilt and gave him credit for some 15 hours of community service he had already done and for forfeiting the $10,000 he had posted for bond.
Foxx also continued to talk with Smollett’s movie star sister, Jurnee Smollett, about the case even after the state’s attorney learned that Jussie Smollett had become the target of the police investigation into the hoax attack.
Foxx, who said publicly she did not communicate with Smollett’s family once police informed her he was likely not a crime victim, in fact called and texted with Jurnee Smollett for days after learning Smollett was a suspect. In one conversation, the report states, Jurnee Smollett told Webb’s investigators that when she asked Foxx if her brother was a crime suspect just a week before he was arrested, Foxx allegedly replied that her “brother would be fine as long as he stays consistent.” Foxx denied making the statement when asked about it by Webb’s team, the report states.
Foxx also was aware there had been no change to the state of the evidence against Smollett between the time he was indicted and when the case was dropped, despite making public statements— including in a lengthy newspaper op-ed— that the case was shaky.
The report states misstatements might have breached ethical rules for attorneys. Asked Monday if he would forward the report to the state’s Attorney Registration & Disciplinary Commission for review, Webb declined to answer.
David Gaeger, a veteran Chicago criminal lawyer who happened to be in the courtroom the day Smollett’s case was dismissed, said the report left many questions unanswered.
“I can tell you that the hundreds of clients I have facing similar charges have never gotten the kind of deal Jussie Smollett got,” Gaeger said Monday. “Defense attorneys and victims’ families do not get that kind of access to the state’s attorney, and don’t get to talk about their cases like that, in my experience.”
Former prosecutor Tom Needham said that the process outlined in the report showed appalling lapses by Foxx and her staff as they faced the fallout from Smollett’s deal, even if Smollett’s powerful backers did not directly influence the outcome of the case.
“Telling the truth and seeking the truth is what the office is supposed to do,” Needham said. “For the head of the office to be caught making these kinds of false statements, to make some of these decisions, is just as bad as the special treatment.”
Noting that Smollett, 39, was eventually convicted and will soon face sentencing, Needham said it was unclear if Foxx might herself be held to account. Despite the Smollett controversy, Foxx was comfortably reelected in 2020.
“People were rolling their eyes when she was saying that this case was handled the same as any other, and that’s a real stain on the office,” he said. “She was reelected anyway, and possibly the only way we’ll see if anything comes of his is whether or not she wins another election.”