Cook County State’s Attorney Kim Foxx and her office repeatedly misled the public about their handling of the Jussie Smollett matter, according to a 60-page special prosecutor’s report released Monday.
In addition, the way Smollett’s first case was resolved — a quick dismissal at an unannounced hearing under unprecedented terms — “represented a major failure of operations,” the report states.
And Foxx herself stated under oath that she was surprised at how the case was resolved, according to the report.
The report from special prosecutor Dan Webb’s team was ordered released Monday. Webb’s team also brought Smollett to trial on new charges, resulting in a conviction earlier this month on five of six counts of disorderly conduct.
But Webb’s investigation of the initial Smollett case potentially has farther-reaching consequences, providing a glimpse of top prosecutors’ decisionmaking in an enormously high-profile matter.
And intriguingly, the two Cook County prosecutors who took the lead in handling the Smollett case gave sharply contradictory answers about how the case was resolved. Then-First Assistant Joseph Magats and then-Chief of the Criminal Prosecutions Bureau Risa Lanier gave different answers about who handled negotiations with Smollett’s team, when those discussions began, and whether Smollett was given a chance to enter a formal deferred-prosecutions program.
Kim Foxx told special prosecutors under oath that she was “surprised” at the lenient deal her office struck with Smollett and that she got the impression it was handled that way because “they wanted this guy out of town.”
Among the concerns Foxx expressed in her full-day interview was that Smollett was not required to plead guilty to any charge, only had to pay $10,000 in restitution, and was only ordered to perform minimal community service that did not reflect the seriousness of reporting a fake hate crime.
Foxx said the case had brought “a flurry of activity to the courthouse” and “being able to have the case resolved would eliminate throngs of people who were coming to court,” according to the report.
She acknowledged in the interview that sparing the courthouse attention was not the right reason to handle the case the way the state’s attorney’s office did.
“I think the kind of negotiating, let’s get rid of that guy, at the expense of what his actions really did to the city shortchanged, I think, the accountability that the city deserved,” Foxx was quoted in the report as saying.
A Cook County judge on Monday authorized the release of the report exploring the way Cook County prosecutors and Chicago police handled the Jussie Smollett matter.
“The need for disclosure, I think it can safely be said, is greater than the need for continued secrecy at this time,” Judge Michael Toomin said.
The move came after the special prosecutor who handled the actor’s recently completed trial, Dan Webb, sought to release the document to the public not long after a jury found Smollett guilty earlier this month.
Toomin made the decision after a brief hearing Monday morning, at which Webb urged Toomin to release the report so public trust in the court system could be restored. Smollett’s first Cook County criminal case was dropped in 2019 “under what, at best, could be called mysterious or unusual circumstances,” Webb said.
“The public’s perception is that it’s possible in Cook County there’s two different systems of justice,” he said in court. “One is for the ordinary person that finds himself or herself in issues with violating the law, and the other is with privileged people like Mr. Smollett.”
Attorneys for Smollett did not appear in court; however, Ruben Castillo, former Chief Judge of the Northern District of Illinois, appeared on behalf of the Cook County State’s Attorney’s office.
Castillo noted only that the office had cooperated fully with the investigation, and his team could not take a position on the document’s release since they had not seen the report.
While the full report has remained under wraps, Webb’s team wrote a summary of their conclusions that was released in August 2020. The report slated for release Monday will detail the evidence that underlies those conclusions, Webb said.
“I think the public’s entitled to know the evidence,” Webb told reporters after the hearing. “… You had my factual report released a year ago, I concluded there was significant improper conduct that occurred in the State’s Attorney’s office .. the public has a right now to see the evidence that supports the conclusions I reached.”
The much briefer summary released in August 2020 concluded that Webb’s team did not find evidence of criminal conduct, but prosecutors including State’s Attorney Kim Foxx acted unethically by repeatedly making false or misleading public statements about the Smollett matter, according to the news release. Overall, their investigation found “substantial abuses of discretion and operational failures” throughout the state’s attorney’s office.
Toomin has already twice denied Webb permission to release the full details of his investigation since the report contains information gathered as part of grand jury proceedings, which by law are kept secret. Not even Smollett’s attorneys were allowed to see the complete report.
But now that Smollett has been convicted of falsely reporting to police that he was the victim of a hate crime attack, Webb tried again, arguing that Toomin appointed a special prosecutor in part to restore public confidence in the court system after Cook County prosecutors’ handling of the matter.
”The trial of Mr. Smollett being complete, it is now appropriate for the seal on the OSP’s Summary Report to be lifted and for it to be publicly available,” Webb wrote in a motion filed Wednesday.
But Smollett has not yet been sentenced, and his attorneys have promised to appeal, meaning the case could be tied up in courts for years to come.
And when Toomin ruled last year that the report should be kept under wraps, he said nothing about doing so to protect Smollett’s trial rights. Instead, he said, much of the information in the report was already available publicly through other sources, and so there was no need to disturb the confidentiality of the grand jury process.
Smollett’s initial charges were dropped at an unannounced hearing in March 2019, not long after the actor’s indictment, and in the days afterward prosecutors gave contradictory answers about why.
Webb was ultimately named special prosecutor and given a two-pronged mandate: determine whether Smollett should be charged again, and investigate whether police or Cook County prosecutors engaged in wrongdoing.
Smollett was charged again in February 2020 and was convicted on five out of six counts of disorderly conduct.
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