Megan Crepeau and
Jason MeisnerContact ReportersChicago Tribune
Cook County State’s Attorney
Kim Foxx, facing intense criticism after her office
dropped all charges against Jussie Smollett, stood by the decision but said she regretted dealing with
one of Smollett’s relatives in the early phases of the investigation.
Foxx said she would never have
gotten involved if she knew that Smollett would later be deemed a suspect and not a victim.
“I’ve never had a victim that turned into a suspect,” she told the Tribune on Wednesday. “… In hindsight as we see (how) all of it has played out, you know, is there regret that I engaged with the family member? Absolutely."
Due to her contact with that family member, Foxx
withdrew from involvementin the case when investigators started casting suspicion on Smollett, who had reported to police that he was the victim of a hate crime.
Smollett was later indicted on 16 counts of disorderly conduct on charges he staged the attack on himself, but in a sudden reversal Tuesday,
prosecutors dropped all the charges at an unannounced court hearing. The move drew breathless international news coverage and harsh words from police brass and City Hall.
Foxx maintained that she had no role in the dismissal but defended the move, saying her office often handles cases in a similar fashion for defendants with nonviolent backgrounds — an assertion that a number of Chicago attorneys contacted by the Tribune disputed.
“It’s frustrating to me that the reliability of the work of the people of this office has been challenged,” she said. “What happened with Jussie Smollett and having this type of diversion is something we offer to people who do not have his money or his fame.”
Foxx had said she recused herself from the case last month after revealing she had contact with Smollett's representatives early on in the investigation. She declined to provide details at the time, but on Wednesday, her office quibbled over the terminology, saying Foxx did not formally recuse herself “in a legal sense.”
Communications released to the Tribuneearlier this month showed Foxx had asked police Superintendent Eddie Johnson to turn over the investigation to the FBI after she was approached by a politically connected lawyer about the case.
Foxx reached out to Johnson after
Tina Tchen, former chief of staff to first lady Michelle Obama, emailed Foxx saying the actor's family had unspecified "concerns about the investigation." Tchen, a close friend of Mayor Rahm Emanuel's wife, said she was acting on behalf of the "Empire" actor and his family. A relative later exchanged texts with Foxx. A spokeswoman for the office said at the time that Smollett’s relative was concerned about leaks from Chicago police to the media.
Tchen released a brief emailed statement Wednesday, long after her involvement in the case came to light, saying she approached Foxx as a family friend of the Smolletts. She also noted knowing Foxx from unspecified "prior work together."
“My sole activity was to put the chief prosecutor in the case in touch with an alleged victim’s family who had concerns about how the investigation was being characterized in public,” the statement read.
In her approximately 20-minute interview Wednesday, Foxx said she suggested to Johnson that turning the case over to the FBI would clamp down on the leaks and be more efficient. The FBI was already investigating a threatening letter that Smollett had claimed to receive just days before the attack.
During their conversation, Foxx said, Johnson also told her to assure Smollett's family that the actor was a victim. He also expressed frustration with the leaks, she said.
“Perhaps we could ... kill two birds with one stone, if you will, and let the FBI, who’s already working on this, (take it) over,” she said. "And (Johnson) said he would think about it. … I asked him later what happened. And he said ... they weren't interested in it. And I said that's fine."
Illinois law allows for a state’s attorney to “file a petition to recuse himself or herself from a cause or proceeding for any other reason he or she deems appropriate.” If the petition is granted, the law calls for the judge to appoint a special prosecutor either through the attorney general’s office, another county prosecutor’s office or a private attorney.
But Foxx, who stepped away from the Smollett case before charges were ever filed, didn’t file a recusal petition or remove her office from the investigation. Instead, she handed the responsibility for the case to her first assistant, Joseph Magats, a 29-year veteran of the office.
After questions arose this week whether she had followed state law, Foxx’s office appeared to back off whether she ever officially recused herself in the first place.
While the term “recusal “ was used when it was announced she was stepping away from the Smollett case, a Foxx spokeswoman said, “it was a colloquial use of the term rather than in its legal sense.”
“The state’s attorney did not formally recuse herself or the office based on any actual conflict of interest,” Tandra Simonton said in a statement. “As a result, she did not have to seek the appointment of a special prosecutor under (state law).”
An internal memo sent on Feb. 13 by Foxx's chief ethics officer, April Perry, however, did not describe the move as colloquial at all. Instead, Perry sent a two-sentence email informing staff that Foxx "is recused" from the Smollett investigation. It did not say why.
Foxx on Wednesday said that office employees, including Perry, use the word “recusal” internally to describe when the state’s attorney ropes herself off from a case.
“We used the word internally,” she said. “We also use the phrase ‘wall-off.’ … Build a wall, do not talk to the state’s attorney about this case.”
Those precautions were enough to meet ethical standards without withdrawing the entire office from the case, Foxx told the Tribune.
She said she has similarly withdrawn herself from involvement in other cases without recusing the entire office, including one case in which the alleged victim was a distant family member.
In Smollett’s case, Foxx made the informal recusal a week before the charges were filed. At that point, formally recusing the office — or announcing publicly that she was personally withdrawing — would have tipped off Smollett to the fact that he was being considered a suspect, she said.
“Me saying publicly and me moving our office out of it while the investigation was ongoing would signal that (the) investigation had changed outwardly,” Foxx said.
Prosecutors gave little detail in court Tuesday about why the charges were dismissed and did not discuss the terms of any arrangements. Later that day, Magats told the Tribune that prosecutors at some point in the last month made a verbal agreement with the defense: They would dismiss charges in exchange for Smollett performing community service and giving his bond of $10,000 to the city of Chicago.
Meanwhile, Smollett’s defense team adamantly denied that any deal was made at all.
The sudden dismissal of charges stunned regulars at the Leighton Criminal Court Building, both defense lawyers and rank-and-file prosecutors. Attorneys grumbled privately that defendants will now expect similar deals, and some joked about getting a “Smolle pros” — a reference to “nolle pros,” the shortened version of the Latin term for dropping charges.
When asked to provide examples of cases that concluded in a similar fashion, a spokeswoman for the prosecutors’ office gave two.
Prosecutors reached an agreement to drop a felony marijuana charge in January after the defendant performed community service, according to the spokeswoman and court records.
The other case involved felony theft charges that were dismissed in October when the defendant paid off restitution he owed, court records show.
Former Cook County Judge Daniel Locallo told the Tribune that prosecutors’ conduct in the Smollett case raised serious questions, particularly given the lack of public detail about the purported agreement and the little, if any, notice the office appeared to give to police.
“Why the secrecy?” he said. “You believe you have enough evidence to go to the grand jury and you actually indict him, and then without any notice to anybody, you decide to drop the charges?
“What about other defendants? Why aren’t they afforded the same courtesy?” he said. “The bottom line is that this guy got the biggest break. He walks out of court, no charges. His bond goes to the city of Chicago, and he walks out as if nothing happened.”
The outcome also surprised veteran criminal-defense attorney Dawn Projansky.
“Most people usually have to apologize, pay full restitution, do community service and then maybe their case is dismissed. Maybe. Or it’s reduced to a misdemeanor,” she said. “It’s just too fast and … it didn’t follow the proper procedures of any case.”
But Gal Pissetzky, another veteran criminal-defense attorney, said prosecutors and defense attorneys don’t conduct the nuts and bolts of negotiations in public. Besides, there was no reason to brand Smollett a felon, he said.
Pissetzky also said he has reached similar results in similar cases and hopes the high-profile nature of Smollett’s case encourages Foxx’s office to continue resolving cases in that fashion.
“Kim Foxx and her office set a precedent, and with that precedent, hopefully she will continue to work towards crime reform and make this case as an example of how she’s willing to work with the community, not only with people like Smollett to resolve cases amicably.”
hopes the Feds haven't abandoned the mail case if there's enough credible evidence to continue to pursue it.
