Cook County State’s Attorney Kim Foxx engaged in “substantial abuses” in her handling of the Jussie Smollett case, including speaking with his sister eight times after the actor turned from victim to suspect, a special prosecutor assigned to the case announced Monday.
Shortly after Smollett told police he was the victim of a brutal hate crime in January 2019, his sister Jurnee Smollett reached out to Foxx for assistance, concerned private information about the case was being leaked, said Dan Webb, the special prosecutor assigned to re-investigate the case.
Foxx repeatedly claimed those discussions ended when police started investigating Jussie for allegedly faking a hate crime against himself but it turns out that wasn’t true — and continued speaking with Jurnee well after Jussie was considered a suspect, Webb said.
“State’s Attorney Foxx learned by February 8, 2019 that Mr. Smollett had become a suspect in CPD’s investigation, yet she continued communicating with Ms. Smollett through February 13, 2019, including via five text messages and three phone calls. State’s Attorney Foxx then made false statements to the media claiming she ceased all communications with Ms. Smollett as soon as she learned that Mr. Smollett was a suspect in CPD’s investigation and no longer merely a victim,” Webb said in a statement.
The blunder is just one of many found by Webb’s office after he was tapped by Chicago Judge Michael Toomin last summer to re-probe the case amid widespread outcry over how it was handled.
Despite insistences from Foxx’s office that they had a strong case against Smollett, 16 felony disorderly conduct charges against the actor were suddenly dropped on March 26 last year without any acknowledgement of guilt.
Toomin later ruled the case was rife with “unprecedented irregularities” and a special prosecutor was needed to investigate the case from the start in order to restore the public’s faith in the criminal justice system.
Webb, a private attorney, was asked to determine if new charges against Smollett were warranted and if Foxx and her office acted illegally or improperly.
Smollett was slapped with new charges earlier this year, but the investigation into Foxx didn’t wrap up until Monday.
While there’s no evidence Foxx and her office broke any laws, Webb and his team, drawing from 53 interviews, 50 subpoenas and more than 120,000 pages of documents, found five instances of abuse committed by her office.
The first instance was dropping charges against Smollett when no new evidence arose between his indictment and the decision to vindicate him.
“Almost across the board, lawyers who currently work in or previously worked in the CCSAO’s criminal division who were interviewed by the OSP — including State’s Attorney Foxx — were ‘surprised’ or ‘shocked’ by at least some facet of the dismissal terms,” Webb wrote.
Further, Acting State’s Attorney Joseph Magats and lead prosecutor Risa Lanier, the two people in charge of the case, had “significantly and meaningfully” conflicting accounts for how the decision to drop charges was reached, Webb said.
He added Lanier’s decision to draft a statement on the dismissal in conjunction with Jussie’s counsel was “atypical.”
The second instance of “substantial abuse of discretion” was the reason Foxx’s office gave for the dismissal, saying Jussie’s case was similar to 5,700 others referred for “alternative prosecution.”
“There were not thousands of (or, arguably any) similar cases that the CCSAO resolved in a similar way to the Initial Smollett Case. The CCSAO could not identify any specific similar CCSAO cases it relied upon when resolving the Initial Smollett Case,” Webb said.
Foxx’s office also made “false statements” when they said the $10,000 in restitution Jussie paid was the maximum amount they could request, Webb said. No such cap exists in any existing statutes, he said.
The third finding of abuse was related to Foxx’s decision to recuse herself and appoint her number two, Magats, to act in her stead instead of a special prosecutor, even though the attorney knew the choice was “legally defective,” Webb said.
“Instead of implementing the proper legal course to carry out the recusal once this defect was brought to their attention, the CCSAO and State’s Attorney Foxx made the decision to ignore this major legal defect seemingly because they did not want to admit that they had made such a major mistake of judgment regarding State’s Attorney Foxx’s recusal,” Webb wrote, adding Foxx and her office went on to lie to the media, including The Post, about it.
Finally, Webb’s office found the decisions made by Foxx, her office and Magats “may rise to the level of a violation of legal ethics” and they’ll be reporting their findings to the Illinois Attorney Registration and Disciplinary Commission, which can bring action against them.
Foxx’s office said in a statement that Webb’s report rightfully clears them of illegal actions and “puts to rest” implications of outside influence. They said any false statements made to the public weren’t deliberate and they “reject the OSP’s characterizations of its exercises of prosecutorial discretion and private or public statements as ‘abuses of discretion.’”
“As a result of the issues addressed in the press release, and of discussions of them beforehand, the CCSAO has already made a number of changes to its operations, including the hiring of a new CCSAO ethics officer and more separation of their function from the administration of the office, and strengthening the recusal plan with clear guidelines and explicit definitions of conflicts of interest.”