Kim Foxx’s claim of mob justice in Jussie Smollett case is ridiculous: former judge

Cook County State’s Attorney Kim Foxx has asserted that the judicial system was hijacked to enact “mob justice” against Jussie Smollett, the “Empire” actor who was sentenced Thursday for making false reports to Chicago police about being the victim of a hate crime.

Let’s look at the facts.

Judge Michael Toomin — a scholarly, experienced and well-respected jurist — was appointed by Chief Judge Timothy Evans to address whether a special prosecutor should be appointed in the case. Toomin had previously served as a trial judge at the Leighton Criminal Courthouse and also was briefly on the appellate court.

On June 21, 2019, Toomin filed a written opinion explaining his decision to appoint former federal prosecutor Dan Webb, and cited both case law and statutes addressing the question whether a special prosecutor was warranted. Toomin determined Foxx had recused herself and thus, that she had no statutory authority to appoint First Assistant State’s Attorney Joseph Magats to handle Smollett’s case. Foxx failed to file a petition to recuse herself and did not alert the court of her recusal, which deprived the court of notice that the appointment of a special prosecutor was mandated.

Magats’ appointment was thus without statutory authority. So after Foxx recused herself, no Cook County state’s attorney existed on the case. Therefore there was no state’s attorney when Smollett was arrested, charged, indicted, arraigned and when the charges were dropped.

Foxx claimed Toomin hijacked the case by appointing Webb as special prosecutor. But Webb fulfilled his role by looking at the facts and deciding Smollett should be recharged and prosecuted for his actions. Webb presented evidence to a jury to support the charges against Smollett.

The defendant was given rights guaranteed by both the United States and the Illinois Constitution. Smollett was informed of the charges, had an attorney, received a jury trial, was able to confront witnesses who testified against him, exercised his right to plead not guilty and to force the prosecution to prove him guilty beyond a reasonable doubt. The jury was instructed that if the defendant was found guilty on a charge, the verdict had to be unanimous. While the jury was informed Smollett was presumed innocent, there was no presumption of credibility applicable to any witness, including the defendant. Foxx’s claim Smollett was a victim of mob justice is ridiculous.

Foxx described the prosecution as a “kangaroo prosecution.” A kangaroo court is defined as “an unofficial court held by a group of people in order to try someone regarded, especially without good evidence, as guilty of a crime or misdemeanor.”

I assume Foxx believes the appointment of the special prosecutor was uncalled for, Webb was an imposter and that he prosecuted Smollett without good evidence.

I can’t believe other progressive prosecutors would embrace Foxx’s statement because it is outrageous. Indeed, it sounds like sour grapes because Webb acted as a prosecutor should — and performed better than what Foxx’s prosecutors could have done.

Daniel M. Locallo served as a Cook County judge from 1986 to 2009 and was a Cook County assistant state’s attorney from 1978 to 1983.

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