Now that Jussie Smollett’s trial is behind us a judge decided Monday that Special Prosecutor Dan Webb’s full report on the original decision to drop charges against Smollett could finally be released. The outlines of the 60-page report were revealed last August but the full report hasn’t been public until now. It contains some interesting information, including the fact that DA Kim Foxx, when interviewed last year by Dan Webb’s staff, claimed to be surprised by the decision to drop the charges.
When interviewed by Webb’s team, Foxx told investigators she herself was surprised by the deal made by her prosecutors and that Smollett was not going to be required to admit guilt or do community service after the charges were dropped.
The report said Foxx was under the impression “they wanted this guy [Mr. Smollett] out of town” to prevent the “flurry of activity” his presence brought to the courthouse and “being able to have the case resolved would eliminate throngs of people who were coming to court.”
“When asked by (the special prosecutor) if she agreed that trying to get Mr. Smollett out of town due to press attention might not be the right reason to come up with a disposition, she said that she agreed,” the report also stated. “She further explained, ‘I think the kind of negotiating, let’s get rid of that guy [Mr. Smollett] at the expense of really what his actions did to the City shortchanged, I think, the accountability that the City deserved.’”
This raises several obvious questions. If Kim Foxx thought the decision to drop charges wasn’t appropriate, why did she allow it? Who came to that decision without her approval in the first place? And if she really wasn’t happy about it, why did she claim there was nothing unusual about the decision?
Foxx and her spokespeople made repeated statements comparing Smollett’s treatment to nearly 6,000 low-level defendants who had entered “alternative prosecution” agreements with prosecutors, though the office was unable to find any comparable deals.
Ultimately, Webb’s report found the claim that the Smollett case was handled the same way as other defendants was bunk. Dozens of people interviewed for the report (including Kim Foxx!) agreed that the slap on the wrist Smollett received seemed unusual.
As for dropping the charges in the first place, the consensus of those interviewed was that the DA only dismisses a case without an admission of guilt if some substantial new evidence comes to light which undercuts the prosecution’s case. But everyone agreed there was no new evidence in Smollett’s case prior to the decision to dismiss. None at all. The case was dismissed despite the fact that the prosecution would likely have won in court (and the special prosecutor did eventually win in court). And yet, after her office dropped the charges, Kim Foxx wrote an op-ed for the Chicago Tribune claiming there were evidentiary issues with the case which necessitated dropping the charges. This was flatly untrue.
Who made the decision to dismiss in the first place? The two prosecutors working on it each claimed the other had done it.
Mr. Magats told the OSP that Ms. Lanier handled the negotiations of the terms of the resolution (of which he approved). By comparison, Ms. Lanier told the OSP that MR. Magats handled the negotiation of the terms with Mr. Smollett’s counsel.
Smollett’s own attorney told the special prosecutor that she’d initially had discussions with Magats and then been handed over to Lanier who negotiated the final deal. Meanwhile, Magats claimed the deal was modeled after a Deferred Prosecution Program (DPP) the office sometimes uses while Lanier says she never had that program in mind. The special prosecutor concluded that the deal “does not track the requirements of the DPP.”
Again, Kim Foxx and Magats both claimed the case had been handled like any other case but they internally sent out a request for similar cases to back up this talking point and a search never turned up a single case that was similar. In short, this was all very unusual and they intentionally lied to the public about how unusual it was.
All of this happened after Foxx issued a fake recusal from the case and designated Magats to run it in her stead. The report also concludes that Foxx lied about her communications with Jussie Smollett’s sister Jurnee Smollett:
State’s Attorney Foxx learned by February 8, 2019 that Mr. Smollett had become a suspect in CPD’s investigation, yet she continued communicating with Ms. Smollett through February 13, 2019 including via five text messages and three phone calls. State’s Attorney Foxx then made false statements to the media claiming she ceased all communications with Ms. Smollett as soon as she learned that Mr. Smollett was a suspect in CPD’s investigation and no longer merely a victim.”
There were two interesting conversations on that final day of calls between Foxx and Jurnee Smollett. First, that morning they had a 14-minute call in which Smollett asked if Foxx knew anything about the two suspects in the case. “They’re white, right?” Jurnee Smollett asked. Kim Foxx said they were not. The report adds, “Ms. Smollett said they then had a discussion about the skin color and potential nationality of the two suspected attackers.” Kim Foxx denied telling Ms. Smollett anything about the suspects. Later that same night, Jurnee Smollett and Kim Foxx had a second call during which Smollett could immediately tell that something had changed.
Ms. Smollett said that when she asked if Mr. Smollett was now a suspect, State’s Attorney Foxx reponded: “Your brother should be fine as long as he stays consistent.“
Kim Foxx claimed not to remember this call at all and denied saying Jussie Smollett would be “fine.” Ultimately, there’s plenty of evidence Kim Foxx and others in her office were lying about the dismissal of the case but the special prosecutor couldn’t find evidence that the outcome was motivated by her discussions with outsiders. That doesn’t mean it wasn’t, only that the special prosecutor didn’t find evidence to prove it.
David Gaeger, a Chicago criminal lawyer, told the Sun-Times, “I can tell you that the hundreds of clients I have facing similar charges have never gotten the kind of deal Jussie Smollett got.” He added, “Defense attorneys and victims’ families do not get that kind of access to the state’s attorney, and don’t get to talk about their cases like that, in my experience.”
Here’s a local news story about the release of the report.
And one more. Here’s Fox News’ covering the story and noting there is already at least one call for her resignation.
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