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It’s now or never for Kim Foxx to explain herself on the Smollett case

The report from special prosecutor Dan Webb included such terms as “substantial abuse of discretion,” “breached its obligations of honesty” and “major failure.” Those are not terms that Foxx can shrug off.

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

This is Cook County State’s Attorney Kim Foxx’s last chance to regain the public’s trust. She’s not off to a good start.

On Monday, a 60-page report by special prosecutor Dan Webb was released saying Foxx and her top assistants repeatedly made procedural and ethical missteps and tried to mislead the public when they handled the case of “Empire” star Jussie Smollett, who falsely claimed he was a victim of a hate crime.

The report included such terms as “substantial abuse of discretion,” “breached its obligations of honesty” and “major failure of the operations of the [state’s attorney’s office].”

That’s a pretty stiff indictment of an office that is crucial to the safety of the city and the county. Those are not terms that Foxx can shrug off. The public’s perception of her integrity and competence as a high-level government official is fully at stake.

The Smollett case became controversial when Foxx’s office mysteriously dropped all charges against the celebrity, something that Foxx has yet to explain to anyone’s satisfaction. Webb led a subsequent prosecution in which a jury convicted Smollett of staging the attack.

The case is over, but the controversy will not die down easily. The former Appellate Court justice who petitioned for the appointment of a special prosecutor, Sheila O’Brien, on Monday called on Foxx to resign. Even if Foxx doesn’t, she might face discipline from the Attorney Registration and Disciplinary Commission.

Meanwhile. Webb’s report was described as everything from “troubling” to “damning,” even by people who want Foxx to succeed. If Foxx wants to be effective for the rest of her term, she must come clean, admit all of her mistakes and set matters right. Now that Smollett has been convicted, she needs to explain why she wrote in a March 29 Chicago Tribune op-ed, as a justification for dropping the case, that, “There were specific aspects of the evidence and testimony presented to the office that would have made securing a conviction against Smollett uncertain.”

Special Prosecutor Dan Webb speaks to the media on Monday after Judge Michael Toomin ordered the release of his report, which details how Kim Foxx and her staff handled the decision to drop charges against “Empire” actor Jussie Smollett.
Pat Nabong/Sun-Times

Damage has been done. Just one of the inexplicable issues in the report is that those who settled the Smollett case said they did so partly because the case brought a “flurry of activity” to the Leighton Criminal Courts Building. As justifications go, let’s just note that one was a little unusual, to say the least.

The report also says Foxx kept telling the public she stopped communicating with Smollett’s sister after she learned the actor had become a suspect, but it turns out Foxx continued communicating with the sister for several days, according to the report. Everyone, inside the state’s attorneys office and outside, has to wonder why she lied about that, if the report is correct.

Foxx has to level with Chicagoans, a point this editorial board has made previously. Coming clean with the public includes clarifying why her office settled the case, admitting all the mistakes that were made and convincing the public they won’t happen again. Foxx has to explain how two top assistants gave different accounts of how a decision was reached to dispose of Smollett’s case, a deal other defendants could only dream about. The report makes it appear as though Foxx’s office was in disarray.

Foxx has to make clear how her office will effectively work with law enforcement, and that she stands with Mayor Lori Lightfoot when Lightfoot says addressing crime is a priority. Foxx must say that while she is for progressive measures, she recognizes she must also prosecute violent criminals and make streets safe. There is a lot of concern about crime in Chicago, and residents need to feel they can trust the state’s attorney to do the right thing. It’s her job to uphold the law.

When the Smollett case broke, Foxx was new at her job. Now she has been in office for five years, and this report affects her credibility on every front. It affects it on retail theft, an area where Foxx has taken heat for going too easy on alleged offenders. It affects her credibility on criminal justice reform, since she cannot be an effective leader on reform if hers is a voice that is no longer trusted.

If people believe that because of some special status, such as Smollett had, you can be treated differently, how are they going to have confidence in the system if their loved ones get caught up in it, either as victims or defendants?

In a statement Monday, members of Foxx’s office said they “respectfully disagree” with the report’s conclusions. That doesn’t inspire confidence at all.

Average Chicagoans can’t know what happens every day in every courtroom. A case like Smollett’s is a lens they use to judge the performance of the state’s attorney’s office, and Webb’s report puts the office in a bad light.

It’s now or never for Foxx to fix that.

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