Kim Foxx's Dismissal Of Jussie Smollett Case Was 'Major Failure'

CHICAGO — Cook County State's Attorney Kim Foxx and prosecutors in her office repeatedly misled the public and committed "substantial" abuses of discretion that "represented a major failure of operations" by dismissing the initial 16-count indictment of former "Empire" actor Jussie Smollett, according to a 60-page special prosecutor's summary report.

The report by special prosecutor Dan Webb, which a Cook County judge ordered to be released Monday, found:

• The process and decision-making for resolving the initial criminal case against Smollett was a "substantial abuse of discretion and represented a major failure of operations."
• The state's attorney's office "breached its obligations of honesty and transparency by making false and/or misleading statements" to the public regarding Foxx's recusal.
• Foxx "made false and/or misleading statements to the public that she stopped communicating" with Smollett's sister, Jurnee Smollett, after becoming aware the "Empire" actor had become the target of a police investigation.
• There was evidence "that may rise to the level of a violation of legal ethics" by Foxx and Cook County prosecutors.

After Smollett's conviction, Webb sought to release the findings of his investigation, which had previously remained under court seal.

At a short court hearing Monday, the Tribune reported that Webb said, “The public’s perception is that it’s possible in Cook County there [are] two different systems of justice. One is for the ordinary person that finds himself or herself in issues with violating the law, and the other is with privileged people like Mr. Smollett.”

Cook County Judge Michael Toomin said, "The need for disclosure, I think it can safely be said, is greater than the need for continued secrecy at this time," according to the Tribune.

Webb's report included details about statements Foxx made under oath during an interview, including:

• Foxx said she was "surprised and disagreed" with how the initial charges against Smollett were handled by her office.
• Foxx said she was "surprised" that Smollett was not required to plead guilty to any charges.
• Foxx said the terms of Smollett's community service — 18 hours volunteering with Operation PUSH — "might have been too easy for him."
• Foxx said Smollett should have had to pay more than $10,000 in restitution, "assuming he had the means to do so."
• Foxx said she got the impression that Smollett's case was handled the way it was because "they wanted this guy [Smollett] out of town."

Foxx told Webb under oath that the Smollett case brought a "flurry of activity to the courthouse," and a quick resolution to the case "would eliminate throngs of people who were coming to court."

She said she got the sense prosecutors in her office wanted to move "expeditiously," including "fronting the community service" before the case was dismissed so Smollett "could be done and go back home."

When asked if trying to get Smollett out of town due to media attention might not have been the right move, Foxx said, "I think the kind of negotiation, let's get rid of that guy [Smollett] at the expense of really what his actions did to [Chicago], shortchanged, I think, the accountability the city deserved."

Webb's report stated that Foxx wasn't the only person in her office shocked by how the initial case against Smollett was handled. More than a dozen current and former state's attorney's office employees told Webb they had concerns about the case was handled.

Criminal appeals supervisor Alan Spellberg, for instance, told Webb the speedy dismissal of charges was "unusual" and "ridiculous." Felony review deputy supervisor Nicholas Trutenko told Webb "everything about [Smollett's dismissal] was wrong." And victim witness assistance unit specialist Elizabeth Caratini Buerger called the terms of Smollett's dismissal insulting, and essentially "mocked" hate crime victims," according to the report.

The report also took aim at a false narrative Foxx and her office floated during interviews with reporters and in a news release that claimed the decision to dismiss charges against Smollett was similar to 5,700 cases referred for alternative prosecution. Webb's report states Foxx's office was unable to identify anything close to thousands "or, arguably any," similar cases.

Webb's report accused Foxx of making false statements to the public about the case against Smollett. She told Sun-Times and Tribune reporters that her office has a "strong case" and "would be able to prove he is guilty." Days later, in an op-ed published in the Tribune, Foxx changed her story, alleging that prosecutors in her office believed "the likelihood of securing a conviction was not certain."

"This pivot in her description of the case from 'strong' to 'uncertain' is false and misleading," according to the report.

Indeed, Trutenko, who was involved in pursuing the initial charges against Smollett, told Webb the case against the actor was "air tight."

Foxx also helped draft false statements to the media that aimed to "cover up" the fact she was aware a top prosecutor in her office had explained in an email, complete with legal citations, that her recusal from the Smollett case was legally improper, according to the report.

When Webb showed Foxx public statements claiming she was not aware of the prosecutor's legal analysis of her recusal, she "admitted to the [special prosecutor] that they were 'not accurate.'"

A Foxx spokeswoman said in statement that the state's attorney's office "remains committed to honesty and transparency," and disagrees with the findings in the special prosecutor's report.

"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 [special prosecutor] did not find any criminal activity or undue influence on the part of the State’s Attorney or [her office]," the spokeswoman said in a statement.