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Report finds ‘abuses of discretion,’ but no criminal wrongdoing, in prosecution’s handling of Jussie Smollett case

Jussie Smollett departs after a court appearance Feb. 24, 2020, at the Leighton Criminal Court Building. (Brian Cassella/Chicago Tribune/TNS)

The Cook County state’s attorney’s office engaged in “substantial abuses of discretion and operational failures” in its prosecution of Jussie Smollett, but prosecutors’ conduct did not rise to the level of criminal wrongdoing, according to special prosecutor Dan Webb.

In a news release Monday, Webb’s team said prosecutors’ handling of the hot-button case was riddled with confusing strategies, misleading public statements and outright falsehoods.

And Webb apparently could not shine any light on a question that has gone unanswered for more than a year: How, exactly, did prosecutors reach the deal to drop Smollett’s first case?

The former “Empire” actor was charged last year with staging a phony hate crime on himself. The firestorm of media attention on his case only escalated after prosecutors abruptly dropped all 16 felony counts in a last-minute hearing about a month after he was charged.

In interviews with Webb’s team, the prosecutors themselves had “significantly and meaningfully divergent explanations for how the resolution was reached.” They gave conflicting answers about who negotiated the terms and whether Smollett was offered a chance to participate in a formal deferred prosecution program, according to the report.

But there is no evidence that State’s Attorney Kim Foxx or anyone else was swayed by outside third parties in deciding how to handle Smollett’s charges, Webb concluded. The mysterious and abrupt circumstances under which Smollett’s case was dropped led to widespread speculation that influential political or cultural figures were leaning on prosecutors to give Smollett a sweetheart deal; however, Webb found no evidence to support that.

Webb’s team did strongly indicate they would be reporting other potential ethical violations to the state disciplinary committee, particularly regarding alleged false statements by Foxx and her top deputy, Joseph Magats.

In a statement, Foxx’s office hailed the Webb report for clearing them of criminal wrongdoing and insider deals, but rejected accusations that they abused their discretion, and said “any implication that statements made by the CCSAO were deliberately inaccurate is untrue.”

After Smollett’s charges were abruptly dropped last year, Foxx’s office repeatedly told reporters the case had been resolved in the same fashion as thousands of others — which is simply false, according to Webb’s report.

“There were not thousands of (or, arguably any) similar cases that the CCSAO resolved in a similar way,” the release stated.

In addition, Foxx herself made two other false statements, according to Webb: that $10,000 was the biggest penalty Smollett could have paid by law, and that he had no criminal background. Smollett has a minor criminal record from California, where in 2007 he was convicted of misdemeanor DUI, making false statements to police and driving without a license.

A spokesman for the Illinois Attorney Registration and Disciplinary Commission would not confirm or deny any investigations, since such proceedings are confidential.

Any allegations before the commission would only be made public if ARDC administrators choose to file disciplinary charges when an ARDC investigation is complete.

Among Webb’s other findings: Foxx and her team simply ignored a “major legal defect” regarding her recusal from the case. Once they realized that the recusal had been handled improperly, they “seemingly … did not want to admit they had made such a major mistake of judgment,” according to Webb.

And Foxx misled the media about her interactions with a Smollett family member early in the case — revealed in the news release to be Smollett’s sister, Jurnee Smollett-Bell. Rather than cut off communications after it became clear Smollett was a suspect, and not simply a victim, she continued texting and calling Smollett’s sister for at least five days, according to the report.

Webb was appointed special prosecutor last year by Judge Michael Toomin, who directed his team to fulfill two objectives: determine whether Smollett should be prosecuted a second time, and investigate the conduct of officials who handled the case the first time around.

Webb’s full report on Cook County prosecutors was not made public; in the news release, Webb’s team states that it will be asking Toomin for permission to release the 60-page final report in full.

Webb’s news release Monday also found that while there had been leaks to the media about the police’s initial investigation of the Smollett manner, Webb’s team could not determine who may have leaked the information and could not find any evidence to support criminal charges or wrongdoing by the department in their response to the leaks.

Webb’s special Cook County grand jury indicted Smollett in February on six counts of disorderly conduct alleging he orchestrated a racist and homophobic attack on himself in downtown Chicago in January 2019.

The allegations were similar to charges brought by Foxx’s office last year. Foxx had recused herself from overseeing the prosecution, revealing she’d had contact with a member of Smollett’s family early in the investigation at the request of Tina Tchen, chief of staff to former first lady Michelle Obama.

But in appointing attorney Webb as special prosecutor last year, Toomin wrote that Foxx botched the recusal by handing the reins to her top deputy. Because the recusal was invalid, the entire process played out without a real prosecutor at the helm, he wrote — opening the door for Smollett to be charged again by a separate team of special prosecutors.


© 2020 Chicago Tribune

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