Cook County Record

Saturday, April 4, 2020

Two-year-old law change intended to benefit non-violent poor offenders used by Smollett to seal case


By Jonathan Bilyk | Mar 28, 2019

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Editor's note: This article, which was originally published on March 28, 2019, was revised on April 1, 2019, to clarify the opinions of professor and attorney Richard Kling, of Chicago Kent College of Law, regarding the options available to judges in ruling on an immediate request to seal a case file.

A little heralded change to Illinois law two years ago – one intended by supporters to benefit poor people charged with petty offenses - has allowed actor Jussie Smollett and the Cook County State’s Attorney’s Office to keep the details of the case leading to his dismissal under wraps, so far.

On March 26, Cook County prosecutors shocked many when they used a hastily arranged, unpublicized emergency hearing to abruptly abandon the prosecution of Smollett, who faced 16 counts over allegations he faked a hate crime.

Cook County State's Attorney Kim Foxx

Immediately after the charges were dismissed, Cook County Circuit Judge Steven Watkins granted the request from Smollett’s attorneys to seal the case file, shielding it from public view.

Almost immediately, the Cook County courts clerk’s office scrubbed any reference to Smollett from its publicly accessible database.

In the days following, Cook County State’s Attorney Kim Foxx has said the seal order was granted inadvertently. Nonetheless, as of Thursday, Smollett’s case file remained inaccessible.

Further, the Chicago Police Department said the allegedly inadvertent seal order extended to the police’s records from the investigation of the hoax, as well.

The continued presence of the seal order and confusion over its status has only deepened criticism of Foxx’s office handling of the Smollett matter, which already was muddled by confusion over whether Foxx had ever recused herself from handling the case.

Earlier, Foxx had used the word “recuse” when discussing her involvement with the case. After she made that announcement, reports surfaced that she had been communicating with Tina Tchen, the former chief of staff for First Lady Michelle Obama, who had lobbied her on behalf of Smollett to persuade the Chicago Police to transfer the case to the FBI.

 However, in the hours following the surprise decision to drop the charges against Smollett, the Cook County State’s Attorney’s Office said Foxx had not fully recused herself from the case, but had only used the term in the “colloquial” sense.

If Foxx had formally recused herself, the law could indicate she would have been required to request the appointment of a special prosecutor to handle the rest of the case, meaning no one in her office could have handled the case.

While it remains to be seen if anyone will review that aspect of the case, the order sealing Smollett’s case file has come under criticism, particularly from critics alleging a secret deal and coverup to benefit Smollett.

Regardless of the actual status of the seal order, Foxx’s deputies may have left Judge Watkins with little choice on the matter.

Richard Kling, a criminal defense lawyer and professor at the Chicago Kent College of Law with decades of experience in Chicago’s criminal courts and legal classrooms, noted in 2017, state lawmakers changed the law on sealing such criminal records.

Previously, persuading a judge to seal such records was a lengthy process, requiring multiple motions, notifications to police and prosecutors and as many as four court appearances, Kling said.

Two years ago, however, the state law was transformed, allowing anyone against whom criminal charges have been dismissed, particularly those who complete an alternative sentence or who were subject to so-called deferred prosecution, to immediately petition the court to seal the records.

Kling said the measure was intended to help non-violent petty offenders avoid a criminal record, which could endanger their attempts to find employment and move on with their lives.

Kling said it was particularly intended to benefit tens of thousands of poor Illinois residents and others who may struggle to find the time and resources to complete the record sealing process.

In the Smollett case, however, the accused’s socioeconomic status was just the opposite.

“A case like that of Jussie Smollett doesn’t come along very often,” Kling said. “It is generally for petty-ish offenses.”

After Foxx’s deputies failed to object to the record sealing request, the judge may have been bound to grant the petition, as the law indicates the judge should rule on the sealing petition request at the same hearing at which it is presented. However, Kling said the judge could also have opted to continue the hearing to a later date or even still denied the petition, leaving Smollett's team to seek a court order compelling Judge Watkins to seal the case or have the questions sorted out on appeal.

The process in criminal courts is markedly different from the process by which civil cases are sealed. In civil litigation, the party seeking to seal the file must present a petition, and the other side file a response, before arguing the motion before a judge in a properly noticed court hearing.

Kling noted the sealing process is not necessarily final.

He said under the law, any of the parties involved in the prosecution of a criminal complaint, including the police, can petition the court to unseal the file.

To this point, it is not known if anyone has done so.

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Organizations in this Story

Chicago - Kent College of LawChicago Police DepartmentCook County State's Attorney's OfficeCircuit Court of Cook County