Cook County Record

Monday, March 30, 2020

Fellow prosecutors blast Foxx's handling of Smollett case: 'Undermines very foundation of court system'


By Cook County Record | Mar 29, 2019

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Cook County State’s Attorney Kim Foxx has come under fire from her colleagues in the Chicago area and across the state, as the association representing Illinois’ various county prosecutors blasted her handling of the case against actor Jussie Smollett.

In a statement released Thursday, the Illinois Prosecutors Bar Association said Foxx’s “handling of the Jussie Smollett case is not condoned by the IPBA, nor is it representative of the honest ethical work prosecutors provide to the citizens of the State of Illinois on a daily basis.”

“The manner in which this case was dismissed was abnormal and unfamiliar to those who practice law in criminal courthouses across the State,” the IPBA statement said. “Prosecutors, defense attorneys, and judges alike do not recognize the arrangement Mr. Smollett received.

Cook County State's Attorney Kim Foxx

“Even more problematic, the State’s Attorney (Foxx) and her representatives have fundamentally misled the public on the law and circumstances surrounding the dismissal.”

The statement is signed by IPBA Lee Roupas, an assistant state’s attorney in DuPage County.

The organization’s other officers include current prosecutors from Kane County, Will County, Sangamon County and St. Clair County, as well as two others from DuPage County, representatives of the Illinois Attorney General’s Office and a former Cook County assistant state’s attorney.

The organization claims to speak for 1,000 other prosecutors throughout Illinois.

Foxx has come under a storm of criticism on multiple fronts for her handling of the Smollett case, which resulted in a surprise move on Tuesday to drop the charges without securing a guilty plea from Smollett to 16 counts for his actions in allegedly concocting a fake hate crime.

The black and gay actor reported in January being assaulted by two white supporters of President Donald Trump, who he claimed poured bleach on him, put a noose around his neck and yelled racial and homophobic epithets at him.

A resulting police investigation alleged Smollett himself was behind the incident, having arranged for two Nigerian brothers who he knew to stage the attack in Chicago’s Streeterville neighborhood.

He was later indicted by a grand jury.

However, without warning to either the police or the public on Tuesday, Foxx’s deputies told a judge they weren’t going to prosecute Smollett. The move outraged police and many others.

It also cast a light on Foxx’s actions, as she had earlier in the case indicated to the public she would “recuse” herself. It was later revealed she had communicated during the investigation with a member of Smollett’s camp, identified as Tina Tchen, former chief of staff to First Lady Michelle Obama.

After the charges were dismissed, however, Foxx defended the dismissal, saying it wasn’t any different than other deals offered by Cook County prosecutors to others charged with non-violent crimes who had no prior criminal history.

Spokespeople for Foxx also backtracked on her statements concerning recusal, saying she had not used the term as a formal legal statement, but rather in the “colloquial” sense of the word.

In their statement, the IPBA zeroed in on the issue of Foxx’s recusal, noting under Illinois law a county state’s attorney is required to request the appointment of a special prosecutor if they recuse themselves from a case.

“Here, the State’s Attorney (Foxx) kept the case within her office and thus never actually recused herself as a matter of law,” the IPBA said.

Further, the IPBA criticized Foxx’s office’s public statements concerning the decision to allow Smollett’s lawyers to seal the case file, shielding it from public view and preventing a public examination of what actually happened in the case.

“…The Cook County State’s Attorney’s office falsely informed the public that the uncontested sealing of the criminal court case was “mandatory” under Illinois law. This statement is not accurate. 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,” the IPBA said.

“The State’s Attorney not only declined to fight the sealing of this case in court, but then provided false information to the public regarding it,” the IPBA said.

“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.”

And the IPBA said Foxx’s assertions the Smollett deal was nothing out of the ordinary also were “plainly misleading and inaccurate.”

“This action was highly unusual, not a statutory diversion program, and not in accordance with well accepted practices of State’s Attorney initiated diversionary programs,” the IPBA said. “The IPBA supports diversion programs, and recognizes the many benefits they provide to the community, the defendant and to the prosecuting agency.

“Central to any diversion program, however, is that the defendant must accept responsibility. To be clear here, this simply was not a deferred prosecution.”

The IPBA said Foxx’s actions “have fallen woefully short” of the ethical standards required of prosecutors.

“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.”

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