Jussie Smollett Agreement ‘Abnormal,’ Prosecutors Violated the Law: Lawyers Group

By Zachary Stieber

An Illinois lawyers group said that the agreement between actor Jussie Smollett and Chicago prosecutors to drop the 16 felony counts against the actor 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 Cook County State’s Attorney and her representatives have fundamentally misled the public on the law and circumstances surrounding the dismissal,” the Illinois Prosecutors Bar Association said in a March 28 statement.

The group said that when Kim Foxx, the lead prosecutor at the office, recuses herself from a case, Illinois law dictates that the court appoint a special prosecutor. Since that didn’t happen, Foxx didn’t actually recuse herself.

Foxx admitted as much on Thursday when her office said in a statement that despite saying “recuse” in an earlier statement it actually meant “separated.”

jussie smollett leaves courthouse
Actor Jussie Smollett leaves the Leighton Criminal Courthouse in Chicago on March 26, 2019, after prosecutors dropped all charges against him.(Ashlee Rezin/Sun-Times/Chicago Sun-Times via AP)

“Although we used the term ‘recuse’ as it relates to State’s Attorney Foxx’s involvement in this matter, it was a colloquial use of the term rather than in its legal sense,” the office said in a statement.

Foxx’s separation from the case came after she spoke with a family member of Smollett shortly after the Jan. 29 attack, according to court records obtained by the Chicago Sun-Times. The correspondence was brokered by Tina Tchen, a Chicago attorney who previously served as chief of staff for former First Lady Michelle Obama.

The relative asked Foxx to get the case handed off to the FBI. Foxx said she spoke with Chicago Police Superintendent Eddie Johnson and passed along the request.

“OMG this would be a huge victory,” the relative texted in reply.

Chicago Mayor Rahm Emanuel, right, and Chicago Police Superintendent Eddie Johnson appear at a news conference in Chicago, Tuesday, March 26, 2019, after prosecutors abruptly dropped all charges against "Empire" actor Jussie Smollett, abandoning the case barely five weeks after he was accused of lying to police about being the target of a racist, anti-gay attack in downtown Chicago. The mayor and police chief blasted the decision and stood by the investigation that concluded Smollett staged a hoax. (AP Photo/Teresa Crawford)
Chicago Mayor Rahm Emanuel (R), and Chicago Police Superintendent Eddie Johnson appear at a news conference in Chicago, on March 26, 2019. (AP Photo/Teresa Crawford)

Foxx defended her actions, noting that Smollett was initially viewed as a victim even as the prosecutor in her office who said he made the final decision to drop the charges admitted that he believes Smollett was guilty of faking a hate crime.

Chicago Mayor Rahm Emanuel and Johnson, the police superintendent, also criticized the agreement, and experts noted that it was highly unusual to agree to drop the charges with no admission of wrongdoing.

The Illinois Prosecutors Bar Association said that Foxx’s office also falsely told media outlets that the uncontested sealing of the criminal court case was mandatory under Illinois law when it is not. “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,” it said.

Blasting the entire situation, the association added: “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,” the group stated.

“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.”