Special prosecutor indicts Jussie Smollett on new charges

A little less than a year after he walked out of a Cook County courthouse seemingly never to return, Jussie Smollett again faces criminal charges as a special prosecutor Tuesday announced a new indictment accusing the former “Empire” star of faking a 2019 hate crime attack.

The new indictment brought by Special Prosecutor Dan Webb — and a three-page statement that rebukes Cook County State’s Attorney Kim Foxx’s decision last year to dismiss charges against Smollett — land about a month from a Democratic primary in which Foxx is fighting to win a second term.

The charges almost certainly will vault Smollett’s case — which involves six counts that are the lowest level of felony offenses in state law — back into national headlines.

Foxx’s office accused former federal prosecutor Webb of roiling the political waters in “James Comey-like” timing, invoking the former FBI director’s decision to announce an investigation of then-candidate Hillary Clinton’s emails ahead of the 2016 presidential election. The state’s attorney’s office also issued a brief statement.

“As the Cook County state’s attorney’s office does in all cases, the special prosecutor reviewed the facts, evidence, and the law, and determined charges were appropriate in this matter,” the statement read. “We are unable to comment further as the matter is pending.”

In a three-page news release issued alongside copies of the charges, Webb said it was “in the interest of justice” to again charge Smollett, given the “extensive nature” of Smollett’s false reports and the manpower police devoted to investigating his case. The city filed a lawsuit against Smollett a month after the charges were dropped, demanding he repay the $130,000 in overtime paid out to detectives that worked on his case.

In his letter, Webb said his investigators said the state’s attorney’s office was unable to show “documentary evidence” that Smollett’s case was handled like similar low-level felony cases involving non-celebrity defendants, despite public statements from the office that the case was typical. Webb found that the case against Smollett was strong, and that the state’s attorney’s office provided no documentation that the evidence against Smollett had somehow eroded between his arrest and when the charges were dropped.

Webb’s letter states his team reached “no conclusions” regarding whether people other than Smollett or state’s attorney’s staffers were involved in wrongdoing, and that their investigation is ongoing. The special prosecutor’s findings on the handling of the case would be put into a report to the Cook County Board.

“The decision to further prosecute Mr. Smollett is not evidence in and of itself that any individuals within the state’s attorney’s office engaged in any wrongdoing in connection with the Smollett investigation,” the statement reads.

Smollett is due to return to the Leighton Criminal Court Building on Feb. 24 for arraignment, almost a year to the day after he turned himself in to police in 2019.

In a statement, Smollett’s lawyers said the latest charges were based on an investigation led by officers Smollett has countersued for malicious prosecution, including a detective they claim testified before the grand jury.

“The charges were appropriately dismissed the first time because they were not supported by the evidence,” Smollett attorney Tina Glandian said in the statement. “The attempt to re-prosecute Mr. Smollett one year later on the eve of the Cook County state’s attorney election is clearly all about politics not justice.”

On a frigid night in January 2019, the actor, who is black and openly gay, told police he had been jumped by a pair of white men near his Streeterville home, and his assailants had shouted homophobic and racist slurs while punching him and pulling a thin rope noose over his head. Police determined that Smollett paid two acquaintances to stage the attack, and he was charged for making false police reports.

A month later, the charges were dismissed by prosecutors at an unscheduled hearing, prompting outraged remarks from then-mayor Rahm Emanuel and legions of observers in Cook County and beyond.

Webb was appointed as special prosecutor six months ago and given a mandate to investigate Smollett and probe how Foxx’s staff handled the case.

Smollett faces charges of disorderly conduct, with each count representing a false statement made to both the officers who initially responded to his apartment, and then for repeating the same claims to detectives later that day.

Smollett faced similar charges in a 16-count indictment issued in March 2019, a few weeks after his arrest.

The new charges almost certainly won’t constitute double jeopardy, said veteran defense lawyer Richard Kling, since the counts were dropped well before the start of a trial. Smollett’s lawyers have argued that he could not be charged for the same alleged crimes because the deal he brokered with the state included punishment, in the form of donating his $10,000 bond to the city and performing community service.

“I don’t think he has a chance in hell of making a successful double jeopardy argument, but I expect his lawyers will try to make one,” said Kling, a professor at IIT-Kent Law school.

Judge Michael Toomin also seemed to address double jeopardy concerns in his order appointing a special prosecutor. Toomin wrote that the case against Smollett, including the decision to charge the actor in the first place, was invalid because Foxx had announced to her staff she was “recused” from the case. Foxx delegated decision-making in the case to her top deputy, but, Toomin said, she should have requested a special prosecutor be appointed to replace her office.