The Curious Case of Jussie Smollett

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On January 29th , the news flashed across the country that Jussie Smollett had been the victim of an attack that was characterized as a lynching.

Supposedly “Empire” actor Jussie Smollett was attacked in the early morning hours on the 29th. The two people who attacked him were “yelling out racial and homophobic slurs”.   They also yelled, “this is MAGA country.”  One of Smollett’s alleged attackers also put a rope around his neck.

The reaction around the country was predictable.  To the elites on the left this was another example of the hate that PDJT was fostering around the country.  Democratic candidates for President including Core Booker and Kamala Harris were quick to jump in and condemn the attack.

The problem?  As the Chicago police did what police do, that is, investigate, they discovered that the whole thing was a hoax, a complete fraud.  The investigation was thorough and dispassionate. Smollett orchestrated the whole thing. The police have a check for $3500 paying for the crime.  They have the check number (#1603) from his bank account.  He is caught.  This is not a “who done it.”  He did it.

He was arrested on February 20th without a 29-person SWAT team being needed.  This led to 16 indictments on March 8th essentially for making a false police report.  Prosecutorial overcharging…undoubtedly.  But still there is no doubt he did it.  He perpetrated a fraud on the American public. It could have caused serious problems, including race riots.

This week abruptly all charges were dropped.  Smollett agreed to forfeit his bond  ($10K) effectively turning it into a fine.  However, this was done without a guilty plea.

Mayor Rahm Emanuel was furious.

“You cannot have because of a person’s position, one set of rules apply to them, and another set of rules apply to everybody else. In another way, you’re seeing this play out in the universities, where people pay extra to get their kids a special position in universities. Now you have a person, because of their position and background, who’s getting treated in a way that nobody else would ever … get close to this type of treatment.”

Police Superintendent Eddie Johnson was also furious.

“I’ve heard that they wanted their day in court with TV cameras, so America could know the truth. But no, they chose to hide behind secrecy and broker a deal to circumvent the judicial system. My job as a police officer is to investigate an incident, gather the evidence, gather the facts, and present them to the state’s attorney.”

That’s what we did, I stand behind the detective’s investigation.”

And David Axelrod, a former top adviser to President Obama tweeted:

A Chicago police union demanded a federal investigation to examine why the charges Smollett faced of making a false police report were dropped on Tuesday.

What happened?  According to Kim Foxx, the State Attorney, this was just a routine deal with regards to a case of this kind.  Former prosecutor Cully Stimson pointed out, deals are done all the time.  90-95% of all cases get pled out.  However, when cases of this kind get pled out, there is always a guilty plea.  The charges do not get dropped.  Smollett did it.  And it is easily provable.  For Foxx to say this is a routine end of this case is disingenuous at best.  On top of this the files were sealed.

The National District Attorney’s office blasted Foxx’s office for their handling of the case.


And if you should happen to think this is bad, the Illinois Prosecutors Bar Association put out its own letter which is even tougher on Foxx.   It absolutely decimates Foxx’s office and the “resolution” of the Smollett case.

The Illinois Prosecutors Bar Association serves as the voice for nearly 1,000 front line prosecutors across the State who work tirelessly towards the pursuit of justice.  The events of the past few days regarding the Cook County State’s Attorney’s handling of the Jussie Smollett case is not condoned by the IPBA, nor is it representative of the honest ethical work prosecutors provide to the citizens of the State of Illinois on a daily basis.

The manner in which this case was dismissed was abnormal and unfamiliar to those who practice law in criminal courthouses across the State.  Prosecutors, defense attorneys, and judges alike do not recognize the arrangement Mr. Smollett received.  Even more problematic, the State’s Attorney and her representatives have fundamentally misled the public on the law and circumstances surrounding the dismissal.

The public has the right to know the truth, and we set out to do that here.

When an elected State’s Attorney recuses herself from a prosecution, Illinois law provides that the court shall appoint a special prosecutor.  See 55 ILCS 5/3-9008(a-15).  Typically, the special prosecutor is a neighboring State’s Attorney, the Attorney General, or the State Appellate Prosecutor.  Here, the State’s Attorney kept the case within her office and thus never actually recused herself as a matter of law.

Additionally, the Cook County State’s Attorney’s office falsely informed the public that the uncontested sealing of the criminal court case was “mandatory” under Illinois law.  This statement is not accurate.  To the extent the case was even eligible for an immediate seal, that action was discretionary, not mandatory, and only upon the proper filing of a petition to seal.  See 20 ILCS 2630/5.2(g)(2).  For seals not subject to Section 5.2(g)(2), the process employed in this case by the State’s Attorney effectively denied law enforcement agencies of legally required Notice (See 20 ILCS 2630/5.2(d)(4)) and the legal opportunity to object to the sealing of the file (See 20 ILCS 2630/5.2(d)(5)).  The State’s Attorney not only declined to fight the sealing of this case in court, but then provided false information to the public regarding it.

The appearance of impropriety here is compounded by the fact that this case was not on the regularly scheduled court call, the public had no reasonable notice or opportunity to view these proceedings, and the dismissal was done abruptly at what has been called an “emergency” hearing.  To date, the nature of the purported emergency has not been publicly disclosed.  The sealing of a court case immediately following a hearing where there was no reasonable notice or opportunity for the public to attend is a matter of grave public concern and undermines the very foundation of our public court system.

Lastly, the State’s Attorney has claimed this arrangement is “available to all defendants” and “not a new or unusual practice.”  There has even been an implication it was done in accordance with a statutory diversion program.  These statements are plainly misleading and inaccurate.  This action was highly unusual, not a statutory diversion program, and not in accordance with well accepted practices of State’s Attorney initiated diversionary programs.  The IPBA supports diversion programs, and recognizes the many benefits they provide to the community, the defendant and to the prosecuting agency.  Central to any diversion program, however, is that the defendant must accept responsibility.  To be clear here, this simply was not a deferred prosecution.

Prosecutors must be held to the highest standard of legal ethics in the pursuit of justice.  The actions of the Cook County State’s Attorney have fallen woefully short of this expectation.  Through the repeated misleading and deceptive statements to the public on Illinois law and circumstances surrounding the Smollett dismissal, the State’s Attorney has failed in her most fundamental ethical obligations to the public.  The IPBA condemns these actions.

This irregular arrangement was an affront to prosecutors across the State, the Chicago Police Department, victims of hate crimes, and the people of the City of Chicago and Cook County.  We strongly encourage our members and the public to review the National District Attorneys Associations statement on prosecutorial best practices in high profile cases.

So, again the question is asked, what happened?

Foxx, the State Attorney, said that she recused herself but did not actually do that.  So, she lied to the public.  Her office falsely informed the public that the sealing of the case was “mandatory.”  This was false.  The sealing of the case was not done according to protocols and denied law enforcement parties of their right to object.  It was done under “emergency” provisions which have yet to be identified. Implying it was done in accordance with a statutory diversion program is misleading and inaccurate.  No acceptance of responsibility by Smollett was done. To call the outcome highly unusual is to be kind when kindness is an affront to one’s sensibilities about fairness in the justice system.

The question that has to be asked is why? John Sexton points out,

The IPBA is basically calling Kim Foxx a liar. It’s not even particularly subtle about it. The idea that this was just routine, to dismiss 16 felonies in a case that made international news without an admission of responsibility, is laughable according to the IPBA. The CPD, the Mayor, and the National District Attorneys Association agree. How long will Kim Foxx continue to pretend this was all business as usual?

How long indeed?  This appears to be another case where a high profile defendant who has “good” connections receives a sweetheart deal that no other normal defendant would.  Is it any wonder that the public has so little confidence in the integrity of our government offices today?

Perhaps the answer lies in interactions that Foxx had with one Tina Tchen, Michelle Obama’s former chief of staff. The initial text message was received three days after the hoax hate crime was set up.

“I wanted to give you a call on behalf of Jussie Smollett and family who I know. They have concerns about the investigation.”

Does this picture explain the result?

What role, if any, did Kamala Harris play in all this?  She is, after all, his aunt.  She had an anti-lynching bill languishing Congress when this happened.  Coincidence?  Was championing an anti-lynching measure after the attack part of her plan to roll out her candidacy?

With the knowledge that the Dems were sure to have that the Mueller Report was going to be a bust, was this an attempt to distract the public from it?

Lots of questions but no clear answers at this point.