Chicago mayor, Cook County state’s attorney butt heads over fatal shooting prosecution | Courthouse News Service
Thursday, November 30, 2023
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Chicago mayor, Cook County state’s attorney butt heads over fatal shooting prosecution

Mayor Lori Lightfoot and State's Attorney Kim Foxx publicly traded barbs all week, over Foxx's decision not to pursue felony charges against five men involved in a fatal shooting on Chicago's West Side.

CHICAGO (CN) — The video is blurry. It's hard to make out any faces. A car pulls up to a curb, men jump out and suddenly there is gunfire — it's not clear who shoots first. One man falls, people run in all directions, then the cops show up.

It's a short video, capturing a gang dispute that occurred Friday, Oct. 1 in the neighborhood of Austin on Chicago's West Side. If Lori Lightfoot were the Cook County State's Attorney, she would have charged all five of the men suspected to be involved in the shooting — which left one dead and two injured — with felonies. But Lori Lightfoot is not the state's attorney. She is the mayor of Chicago. And she is furious that the actual Cook County State's Attorney, Kimberly Foxx, pursued nary a count of aggravated battery.

“We can't live in a world where there's no accountability, the mayor said in an unrelated Monday press conference. "When there's no accountability... individuals who wreak havoc, who fire indiscriminately or fire at a target but without any regard for the sanctity of life... if they do not feel like the criminal justice system is going to hold them accountable, we're going to see a level of brazenness that will send this city into chaos."

It was a slap in the face to Foxx's office, one she didn't take lying down. In her own press conference on Tuesday she rebuked Lightfoot — a former federal prosecutor herself — for taking a case still under investigation into the media spotlight.

"I find myself here today having to respond to a narrative that was given by the mayor yesterday, regarding a case that is still under investigation," Foxx said. "It was inappropriate. It was wrong... discussing the facts of this case in the press without the benefit of all of the evidence does a disservice to the communities who have been impacted by this violence."

Foxx maintained that her job as a prosecutor was not merely to arrest people but to secure a conviction, something that could not be done without sufficient evidence.

"We reviewed the evidence that was presented to us in consultation with the detectives," a Monday release from Foxx's office read. "And they agreed we were unable to approve charges based on the evidence presented."

Lightfoot, undeterred, shot back with a letter signed by five West Side aldermen — a letter demanding that the two men suspected of initiating the gunfight face felony charges.

So it went for much of the week, with barbs traded across news conferences, through press releases, in emails and back-room meetings. But more than just a spat between two of Chicago's public figures, the fight soon took on sociocultural dimensions. It became a shibboleth for the major dividing line running through the entirety of Chicago politics.

On one side, the technocratic liberalism of the New Chicago Machine. Lightfoot's politics. The politics of means-tested solutions and tough financial calls; the politics of Rahm Emanuel, Barack Obama and most of the city's aldermen.

On the other side, the city's progressive movement, nascent if not ascendant since at least 2018. The politics of the Chicago Teachers Union, the Democratic Socialist Caucus of city hall, and community activist groups across the city.

Those in the former camp want accountability for wrongs done, respect for the rules of polite society enforced. Crime, meet punishment.

"What can we tell residents of this community about the legitimacy of the criminal justice system? This kind of brazen violence must be met with a swift and certain accountability through felony charges," the letter signed by the five West Side aldermen read. "Anything less than that invites more lawlessness and more brazenness which too many communities are experiencing in this time."


Those in the latter group balk at what they see as a naked disdain for civil rights by the rich and the powerful. A bloodthirsty demand for a scapegoat, to avoid reckoning with the systemic inequality from which gang fights and gun violence bloom.

"The fact that there's a feud between Chicago's mayor and top prosecutor because the mayor wants people charged for a gunfight, while the prosecutor says there's no evidence of who did what, should be national news. What the mayor is doing is horrifying," activist and author Kelly Hayes of the progressive news outlet Truthout said in a Wednesday tweet. "The mayor of Chicago is demanding a charge them all and let god sort it out approach to criminal justice... This is so dangerous. It should be called out. It should be opposed."

The two camps fought, in person and online, while elder statesmen like Jesse Jackson and even Chicago's favorite priest — Father Michael Pfleger — called for a ceasefire.

“They're talking past each other; both of them are good people." Jackson said in a Thursday address at a public high school where two students had recently been shot." Let’s talk it out in private and not in public. It creates more division within the city.”

In this furor, the case itself — and the reasons why Foxx decided not to pursue felony charges — largely fell into the background. A police report leaked to local media claims her office decided not to press felony charges because it was too difficult to tell — at least at first glance — who initiated the violence. In that uncertainty, the report stated that the office decided to classify the incident as "mutual combat."

"[Mutual combat] is considered in Illinois a mitigating defense," Mike Botti, a former Assistant State's Attorney for DuPage County explained in an interview. "It's a fight where both parties enter willingly."

Botti further explained that when death occurs in cases deemed mutual combat — such as a bar brawl or when children's play fights get out of hand — both parties' explicit or implicit consent to the fight can shield them from murder charges. But there are stipulations that make it a hard defense to successfully implement.

"It's not an easy defense because you have to show that both parties were on equal terms...the retaliation has to be proportional," Botti said. "I've never seen it successfully used in a trial."

With Foxx's office sticking to its vow to not discuss an ongoing investigation publicly, it's hard to know how the state's attorney truly intended to utilize the mutual combat doctrine. Sticking to the argument that her office must pursue convictions, not arrests, Foxx maintained through the week that to press felony charges against the five men would be premature.

But Lightfoot wasn't having it. On Tuesday, she said in a press conference she would look into asking the U.S. Attorney's Office in Chicago to pursue federal felony charges, if the Cook County State's Attorney was unwilling to do likewise.

And, for his own sake, Botti agreed with the mayor.

"You could make [the mutual defense] argument for every gang shooting in Chicago on that logic," Botti said. "As a prosecutor... it's not [her] job to come up with a defense for the defense."

But Foxx, too, stuck to her guns throughout the week- even after a second round of talks between her office and the mayor's on Thursday produced little more than a press release. She reiterated that the Chicago Police Department, an institution that has found itself at odds with both women's offices in the past, supported her decision not to press felony charges.

"As from the very beginning, CPD continued to agree that there is insufficient evidence for charges at this time and informed the Mayor as such. However, the [Cook County State's Attorney's Office] remains committed to working with CPD as they continue their investigation."

It remains unclear how the case will play out moving forward. What is clear is that for the moment, both the mayor and the state's attorney are sticking by their once-and-future positions.

"I believe that there are charges that can be brought, at a minimum, against the individuals who initiated the gunfire... they have to be held accountable," Lightfoot said Monday.

"The Cook County State's Attorney's Office is here... to hold those who cause harm to our communities accountable..." Foxx said on Tuesday. "However, we will do it with the Constitution and abiding by the civil rights that are afforded to all."

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