A special prosecutor tasked with reinvestigating the case against Jussie Smollett has found that the Cook County state’s attorney’s office did not violate the law in its handling of the case but did abuse its discretion in deciding to drop charges and put out false or misleading public statements about why it did so.
The findings, published in a news release on Monday, conclude the investigation by the special prosecutor, Dan K. Webb, who was appointed last year after a judge ruled that the state’s attorney, Kim Foxx, had not properly handled the Smollett case the first time. In February, Mr. Webb announced that a grand jury had revived the criminal case against Mr. Smollett, indicting him on charges that he lied to the police in connection with an alleged hate crime attack against him.
Another part of Mr. Webb’s investigation involved determining whether any person or office engaged in wrongdoing while handling the case. In the news release, Mr. Webb’s office said that it unearthed evidence that supports “substantial abuses of discretion and operational failures” by the state’s attorney’s office in prosecuting the initial case in 2019.
Mr. Webb’s office found that lawyers who work or had previously worked in the office’s criminal division were “surprised” or “shocked” by the terms under which prosecutors dropped the charges against Mr. Smollett, just a month after his arrest. It also determined that prosecutors only informed the Chicago Police Department about the dismissal of the case minutes before a court hearing and did not consult with the department on the terms of the dismissal — under which Mr. Smollett was required to complete community service and forfeit the $10,000 bond that had released him from jail. He was not required to plead guilty.
The special prosecutor found that the state’s attorney’s office, in explaining its decision to drop the charges, “breached its obligations of honesty and transparency” by making false statements such as its claim that Mr. Smollett was just one of thousands of defendants whose case had been referred for alternative prosecution. The state’s attorney’s office could not identify any specific cases on which it relied in deciding to drop the case against Mr. Smollett, who had been accused of paying two acquaintances to attack him as part of a hoax, the special prosecutor said.
The special prosecutor’s office is asking a judge to allow it to release its full summary of its final conclusions.
In a statement on Monday, the office led by Ms. Foxx, who is up for re-election this fall, said that the findings put “to rest any implications of outside influence or criminal activity” on the part of its employees.
But the office said that it “categorically rejects” the special prosecutor’s assessment that it made “abuses of discretion” in its communications to the public. Any implication that the office made statements that were knowingly inaccurate is untrue, the statement said.
Some of the statements that Mr. Webb described as false related to Ms. Foxx’s decision to recuse herself from the Smollett case to avoid any perception that she had a conflict of interest after disclosing that she had communicated with Mr. Smollett’s representatives when he was still considered a victim. Her decision to hand the case to her deputy rather than someone outside her office has been the subject of scrutiny by legal experts, and both Mr. Webb and the judge who appointed him determined it to be incorrect procedure.
Once Ms. Foxx realized that she had not properly recused herself, Mr. Webb’s office said, she and her office “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.”
Mr. Webb’s office found that Ms. Foxx also made a false public statement about her communication with Jurnee Smollett, Mr. Smollett’s sister, who is also an actress. Ms. Foxx had said publicly that she had ceased communication with Ms. Smollett after she learned that Mr. Smollett had become a suspect, the special prosecutor’s office said, but she continued to text Ms. Smollett and speak with her by phone for five days after that.
Even after Ms. Foxx passed the case along to her deputy, the special prosecutor’s office found that she was provided with frequent updates about the prosecution.
The false statements that Mr. Webb says were disseminated by Ms. Foxx and her office could be ethical violations as established by an Illinois Supreme Court precedent, his office said. Mr. Webb’s office clarified that it has no authority to determine whether the statements are violations but would be referring its findings to a disciplinary commission.
A lawyer for Mr. Smollett, Mark Geragos, said that he believed that the timing of the announcement seemed “politically motivated” against Ms. Foxx, saying, “This is nothing more than an attempt to take down a young Black woman who doesn’t fit in with the white power structure.”
Mr. Webb’s office did not immediately respond to that allegation.
The findings draw to a close another chapter of the legal proceedings that have resulted since Mr. Smollett reported to the police in January 2019 that two men had attacked him, poured bleach on him, called him racist and homophobic epithets and placed a noose around his neck. Mr. Smollett’s acquaintances — the brothers Olabinjo and Abimbola Osundairo — had told the police that the actor had paid them $3,500 to orchestrate the attack. Mr. Smollett has maintained his innocence.
Mr. Webb’s office noted that while its investigation has concluded, Mr. Smollett will stand trial for the charges from February. The trial date has not yet been scheduled and will likely be delayed for months because of the coronavirus pandemic.
In its news release, the special prosecutor’s office said that it had focused its investigation on whether employees of the state’s attorney’s office might have violated criminal statutes and committed obstruction of justice, perjury or bribery. The office said it did not have evidence to bring such charges.
Also at the center of the inquiry into Ms. Foxx’s handling of the case was her communication with Ms. Smollett, as well as Tina Tchen, a former chief of staff to Michelle Obama, who had emailed Ms. Foxx saying that the actor’s family had “concerns about the investigation.” The Chicago Tribune reported that Ms. Foxx then told Ms. Tchen, and separately a member of Mr. Smollett’s family, that she had asked the police superintendent to request that the F.B.I. take over.
Although Mr. Webb’s office determined that Ms. Foxx’s conversations with these people — as well as with Sherrilyn Ifill, the president of the NAACP Legal Defense and Educational Fund — did lead her to request that the F.B.I. take over, it wrote that the request was “not improper” and did not substantively influence the prosecution.
