CHICAGO (AP) — Prosecutors’ handling of the initial case against former “Empire” actor Jussie Smollett represented a “major failure of operations” by the Cook County State’s Attorney’s Office, according to the special prosecutor appointed to review it.
In a 68-page report made public Monday, special prosecutor Dan Webb detailed multiple instances of false public statements about the case by State’s Attorney Kim Foxx and others in her office in 2019, when they first prosecuted Smollett for staging the fake attack then abruptly dropped the charges against him weeks later. Some of the office’s actions may be violations of legal ethics, Webb concluded. He said they did nothing criminal.
Smollett was convicted this month of lying to police in January 2019 about what he said was a racist, homophobic attack in downtown Chicago. Prosecutors said Smollett, who is Black and gay, staged a fake attack to get publicity. He is expected to be sentenced next year.
The report released Monday includes detailed findings by special prosecutor Dan Webb, who took over the case after the Cook County State’s Attorney’s Office dropped charges against Smollett in March 2019. He was tasked with investigating Foxx’s handling of the case and whether Smollett should face charges.
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Webb released a portion of the report including its major conclusions, in 2020. The full report released Monday documents interviews with Foxx, dozens of employees of her office, Chicago police officers and friends and family members of Smollett.
It says Foxx — who recused herself from the Smollett case before it was dropped — told the special prosecutor’s office that she was surprised when all 16 counts against Smollett were dropped, and that she believed he should have been required to admit some wrongdoing, which he was not. She also said she believed prosecutors in her office “wanted to get this guy out of town” because of the media attention that accompanied the case.
Foxx later said in a media statement that the case was dropped just like thousands of other similar cases, which Webb concluded was not true.
“The fact that such a significant mischaracterization could be asserted without sufficient vetting, repeated by figureheads of the (Cook County State’s Attorney’s Office) and then never corrected or clarified — particularly in a case the (office) knows has captured the public attention — is unacceptable for an office that must be transparent and maintain public confidence,” Webb’s report states.
Webb also found that Foxx improperly changed her public position about the strength of the evidence against Smollett. After calling the case against him “strong,” she wrote in a Chicago Tribune editorial shortly after the charges were dropped that securing a conviction was “uncertain.” That pivot was “false and misleading,” Webb concluded.
In response to the released report, the Cook County State’s Attorney’s Office:
The Cook County State’s Attorney’s Office (CCSAO) remains committed to honesty and transparency. Our response remains the same as it was when the Office of the Special Prosecutor (OSP) issued its August 2020 press release. Though State’s Attorney Kim Foxx was not involved with the initial disposition of the Smollett case, she and the CCSAO remain steadfast that the office acted within its broad prosecutorial discretion.
We respectfully disagree with the OSP’s findings of abuse of prosecutorial discretion. A prosecutor’s discretion is as broad as any in the law, and differences of opinion as to how a case was handled do not signify an abuse of discretion. Finally, it is important to emphasize that the OSP did not find any criminal activity or undue influence on the part of the State’s Attorney or the CCSAO.
When the initial findings were released last year, the state’s attorney’s office said it welcomed Webb’s findings that no one on the staff committed a crime and that no undue outside influences affected prosecutors’ decisions, but rejected any characterization of abuses of discretion or false public statements.
Webb also pursued the investigation against Smollett, and a grand jury in 2020 indicted him on new charges of lying to police. A jury convicted the 39-year-old earlier this month on five of six counts of disorderly conduct, a low-level felony.
Smollett has maintained his innocence, and his attorney says they will appeal the conviction.
Cook County Judge Michael Toobin, who appointed Webb as special prosecutor to look into the case, ruled Monday that his full report should be made public now that Smollett’s trial is complete.