Kim Foxx: Smollett got the same justice as anyone else charged with 16 class D felonies (Update: Internal email seeks similar examples)

Kim Foxx is the State’s Attorney who recused herself from the Smollett case after she had some contact with his family early on. She didn’t actually make the final decision, First Assistant State’s Attorney Joseph Magats did that, but today Foxx gave a couple of interviews defending his decision. According to Foxx, Smollett received no special treatment but was given a pre-trial diversion that has been made available to more than 5,000 other people in Chicago. Here’s a bit of what she told WBEZ:

WBEZ: The superintendent of police and the mayor of the city of Chicago expressed a lot of angst about this that we haven’t seen in other big cases that are arguably much more serious. What’s your take on what you’ve been hearing from the city over the last 24 hours?

Kim Foxx: You know, I think that there is a lot of confusion. For people who do this work every day, who recognize what the charges are — this is a Class 4 felony — we recognize that the likelihood that someone would get a prison sentence for a Class 4 felony is slim…

There’s some people who were never gonna be satisfied unless Mr. Smollett spent many nights in prison, and then there were others who believed that the charging of 16 counts of disorderly conduct was excessive. And so I think this is allowing us an opportunity to be able to look at how do we do these cases overall.

If you took the celebrity out of this and looked at Class 4 felonies, or if you were able to isolate out what happens with other disorderly conduct cases when the defendant is not a celebrity, and to see if this is out of line, and I think that gives greater clarity.

That’s her story and she’s sticking to it. So what about the decision to seal the case? In her WBEZ interview, Foxx was asked about that and said, “And in terms of the shroud of mystery, I think the law changed a little while back that allowed for people who were going through this type of arrangement to have their records expunged and their cases sealed, and that is on the defendant — the defendant has the right to ask for that.”

Later, in an interview with NBC 5, Foxx clarified that if Smollett gets his arrest record expunged then the arrest record would be sealed. However, she said that’s separate from the case file which “is actually open.” Supposedly the file in this case is about 8 inches thick. If that’s open, I hope all of it gets released so people can see all the evidence for themselves.

Asked point blank whether Smollett was innocent, as he and his attorney are claiming, Foxx hedged. “You know, I think that the charges that were filed…were appropriate.” Here’s a bit of that interview. The full 13-minute interview can be viewed here.

The bottom line here is that no matter how many people with Class D felonies have been treated this way in the past, Smollett’s hoax seems like something much worse. Because it had an international impact and because he is still maintaining he did nothing wrong, this seems very different from those other 5,000 cases that no one ever hears about. And of course it’s not just the city that was a victim here, it’s all the Americans who were framed as the villains of this little drama. There’s no justice for them in this outcome.

Contrary to what Foxx told WBEZ, I never thought it was likely Smollett was going to do serious prison time. I do think the State’s Attorney (or her assistant) should have at least demanded a public apology in light of the profile of this case. Possibly for the first time in his life, Rahm Emanuel is voicing the frustration of a lot of people who aren’t members of his political party.

“He’s either a person that pulled a hoax around a hate crime for his racial background and sexual orientation or he is totally a victim and innocent,” Emanuel said. He added, “Both can’t be right and the city of Chicago deserves an answer.”

Update: Reporter Charlie De Mar says an internal email from Foxx’s office is asking for examples “felony preferable” where charges were dropped “but the defendant was not placed in a formal diversion program.” Obviously, they want to be able to point to someone else when asked about the handling of the Smollett case. It’ll be interesting to see what they come up with.