Special Prosecutor in Smollett Case Finds State Attorney Abused Discretion

Actor Jussie Smollett smiles and waves to supporters before leaving Cook County Court after his charges were dropped in March 2019. (AP Photo/Paul Beaty, File)

CHICAGO (CN) — The Cook County State’s Attorney’s Office did not engage in any criminal conduct relating to the case against actor Jussie Smollett, a special prosecutor announced Monday, but it did abuse its discretion.  

State’s Attorney Kimberly M. Foxx and her office engaged in some “substantial abuses of discretion” in how they handled the case and talked about it to the public, according to Dan K. Webb, an attorney with Winston & Strawn who was tapped to oversee the investigation.

The former “Empire” actor faced 16 counts of criminal disorderly conduct in 2019 for allegedly staging a hate crime against himself on a Chicago street last January.

Smollett claimed he was attacked by two men who yelled racist and homophobic slurs at him. Two brothers who knew the actor later told Chicago police detectives that they had been paid $3,500 to participate in the hoax.

Mere weeks after a grand jury indicted Smollett on the state’s attorney’s charges, they were abruptly dropped without explanation.

Outrage from city officials and the public followed, and it was later revealed that Foxx had still involved herself in the case despite officially recusing herself due to a potential conflict of interest.

The state’s attorney said that she had been contacted by one of Smollett’s family members but ceased all communication once he went from victim to possible suspect.

Former Judge Sheila O’Brien filed a petition with the Cook County Criminal Court, saying that Foxx’s actions seemed fishy. O’Brien fought for a special prosecutor to be appointed, and Webb was finally picked by the judge in the case to look into whether there was any wrongdoing within Foxx’s office and whether Smollett should face new charges.

In a summary of his report released Monday, Webb said that his investigation, which involved 53 interviews and 26,000 documents as well as text messages and audio recordings, found no criminal conduct but “did develop evidence that establishes substantial abuses of discretion and operational failures by the CCSAO in prosecuting and resolving the initial Smollett case.”

Cook County State’s Attorney Kim Foxx speaks at a news conference in Chicago in February 2019. (AP Photo/Kiichiro Sato, File)

The Cook County State’s Attorney’s Office, or CCSAO, had no basis for dropping its charges against Smollett and made false statements to the media about how its decision was typical and had been made thousands of times, the investigation found.

Foxx herself said that the $10,000 bond Smollett had to forfeit was the most he could have been ordered to pay despite there actually being no cap for his charges. The state’s attorney also initially told reporters a conviction in the case was likely, but when the charges were dismissed two days later she said it was “not certain.”

A main focus for the investigation was Foxx’s recusal. Although she admitted to having contact with Smollett’s sister about concerns the family had about information the police department was releasing to the public, Foxx did not say that she spoke with his sister for several days after the actor was officially a suspect.

While Foxx said she had recused herself “out of an abundance of caution” from the case because of this communication, Webb found that her office never filed official paperwork and simply appointed another attorney from the office to work on the case, while Foxx continued to receive frequent updates about it.

The CCSAO should have petitioned the court to appoint a special prosecutor outside of its office, Webb found.  

“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,” the report summary states. “The CCSAO and State’s Attorney Foxx then compounded the problem by making false statements to the media on April 17, 2019 about State’s Attorney Foxx’s lack of knowledge about this major legal defect in carrying out the recusal.”

The special prosecutor “developed evidence that the CCSAO, State’s Attorney Foxx, and/or Mr. Magats made at least six false and/or misleading public statements relating to the nature and reason for the dismissal of the initial Smollett case and State’s Attorney Foxx’s recusal,” he said, referring to Acting State’s Attorney Joseph Magats.

While the CCSAO did mishandle the case and Foxx’s recusal, its actions do not amount to anything criminal and there was no undue influence from outside parties, Webb concluded.

Webb filed a motion Monday asking for a court order to release the full report of his findings to the public “in the interests of justice.”

“State’s Attorney Foxx is an elected public official who heads an office tasked with protecting individuals and society and empowered with the authority to change people’s lives through the prosecutions it pursues,” the summary states. “Therefore, State’s Attorney Foxx—and the CCSAO—must be accountable to the public.”

Foxx’s office said in a statement Monday that Webb’s report “puts to rest any implications of outside influence or criminal activity on the part of the Cook County State’s Attorney’s Office” and the Chicago Police Department.

“As the report unequivocally confirms, State’s Attorney Foxx was not involved in the decision-making process regarding the Jussie Smollett case at any point and there was no outside influence on that process,” the CCSAO said.

However, it added that “the CCSAO categorically rejects [Webb’s] characterizations of its exercises of prosecutorial discretion and private or public statements as ‘abuses of discretion’ or false statements to the public. While the release does not say so, any implication that statements made by the CCSAO were deliberately inaccurate is untrue.”

The special prosecutor finished the first part of his investigation in February, filing six new criminal charges against Smollett for lying to police about his attack. The actor pleaded not guilty and is awaiting trial after being released on a $20,000 recognizance bond.

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