Kim Foxx: In Jussie Smollett case, our justice system failed. Here’s how and why.

The tactics used are becoming common when cases involve progressive prosecutors. I worry it will serve as a deterrent to the next generation of prosecutors eager to fight for critical reforms.

SHARE Kim Foxx: In Jussie Smollett case, our justice system failed. Here’s how and why.
Actor Jussie Smollett appears at his sentencing hearing at the Leighton Criminal Court Building, Thursday, March 10, 2022,

Actor Jussie Smollett appears at his sentencing hearing at the Leighton Criminal Court Building, Mar. 10.

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At its best, our justice system should make people safer, hold accountable those who seek to harm others and earn the trust of its citizenry. At its worst, the system can be easily manipulated in furtherance of thinly veiled political agendas.

On Thursday, the damaging, costly, and disingenuous criminal prosecution of Jussie Smollett came to an end. As Cook County State’s Attorney, it pains me deeply to say that, in this particular case, our justice system failed. Chicagoans deserve to know how and why it can, and likely will, happen again across the country.

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In January 2019, Mr. Smollett reported that he had been the victim of a hate crime. From the first reports of the alleged attack, this case was treated like no other. When the preliminary investigation suggested that significant portions of his story appeared untrue, many of the specific details quickly found their way into the public sphere. Almost immediately there were leaks to the press, causing the Chicago Police Department to launch an internal investigation. Then-Supt. Eddie Johnson flew to New York City for a live interview on Good Morning America to discuss the evidence and Mr. Smollett’s assumed guilt prior to formal charges being filed.

Given the reputational price Smollett paid, the $10,000 bond we held, and the fact that he’d never been accused of a violent crime, my office made the decision not to further pursue a criminal conviction. This story should have ended there, as thousands upon thousands of non-prosecuted cases do every day.

Instead, taxpayers have since spent millions of dollars for the criminal prosecution of a hoax. Last year alone there were over 800 murders in Chicago. My administration has vacated over 177 wrongful convictions, 87 of those in the last 3 years. Rather than working collaboratively to stem rising crime or free the wrongly convicted, a small group of people hijacked the judicial system to enact what is best described as mob justice.

No “abuse of discretion” standard

Sadly, these tactics are becoming common. Black women elected prosecutors around the country have faced the same mob mentality. In Boston, then-District Attorney Rachael Rollins chose not to prosecute 36 people arrested for peacefully protesting a discriminatory charade called the Straight Pride Parade. In an attempted end-run around Rollins’ prosecutorial discretion, a crusading Municipal Court judge pursued charges anyway and was stopped only by the Massachusetts Supreme Court. In St. Louis, opponents of Circuit Attorney Kim Gardener are working to revoke her law license as retribution for her decision to prosecute former Missouri Gov. Eric Greitens, who was accused of taking nude photographs of a woman he had tied up. (Charges against Mr. Greitens were eventually dropped.)

In Smollett’s case, the mob was relentless, organized and effective. A judge appointed a special prosecutor with an unlimited budget to reopen the investigation into a nonviolent Hollywood actor, a complete disregard for the discretion that prosecutors must have to be effective and independent. As a former prosecutor, Dan Webb knows that prosecutors have that power, and more importantly, knows there is no “abuse of discretion” standard. In fact, the Supreme Court has recognized the “wide discretion” of prosecutors, and that courts should defer to the original prosecutorial decision. Webb knows this, and could refer to his friend Bill Barr’s own remarks.

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Just because we do not like the outcome should not mean we bully prosecutors and circumvent the judicial process to get it changed. Smollett was indicted, tried and convicted by a kangaroo prosecution in a matter of months. Meanwhile, the families of more than 50 Black women murdered in Chicago over the last 20 years await justice.

Along the way, the same special prosecutor pursued a targeted, predetermined “investigation” of my involvement with the case. Knowing I had done nothing wrong but that objecting to the process would be painted as guilt, I cooperated. Predictably, the probe found no criminal wrongdoing and still un-ironically accused me of “abuses of discretion.” It’s a playbook: attack and marginalize anyone fighting to create a more just system, one that recognizes the rule of law.

What is most frustrating is that my cooperation in a process I knew was illegitimate sets a precedent that can be weaponized against progressive prosecutors determined to break the cycle of inevitable outcomes. Further, I worry it will serve as a deterrent to the next generation of prosecutors eager to fight for critical reforms.

Anyone interested in an equitable system of justice should be worried too.

Kim Foxx is the Cook County State’s Attorney.

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