CHICAGO (CBS) -- Cook County State's Attorney Kim Foxx and her office misled the public time and again while handling the Jussie Smollett investigation, according to a special prosecutor's report released on Monday.
Smollett was convicted earlier this month of lying to Chicago Police about being attacked in January 2019, but Foxx's office dropped the original charges in the case, raising serious questions and doubt from the public.
Five months after Foxx's office dropped the initial charges against Smollett, without requiring him to admit any guilty, special prosecutor Dan Webb was tasked with taking over the case and reinvestigating both Smollett's claims and Foxx's handling of the case. Webb ultimately brought new charges against Smollett, and the actor was found guilty earlier this month of of charges he orchestrated a fake hate crime against himself.
Webb also released a summary of his report on his investigation of Foxx's handling of the case last summer, but needed Judge Michael Toomin's permission to release the full 60-page report, because it contains grand jury information, which is typically kept confidential.
Toomin had declined Webb's previous requests to release the full report, but after Smollett was convicted, Webb again asked Toomin to authorize the release of the full report. At a hearing on Monday, Toomin agreed to release the full report, which was made public early Monday afternoon.
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The report cleared Foxx's office of any crimes, but found "substantial abuses of discretion and operational failures" in prosecuting and later dropping charges against Smollett.
"I interviewed (Foxx), and I talked to her and said, how could this have happened? And she could not defend it, so I do think that that's a pretty significant admission," Webb said.
Webb's report concluded, while there was no evidence Foxx or anyone in her office committed a crime in their decision to drop the original charges against Smollett without an admission of guilt, the investigation established "substantial abuses of discretion and operational failures" by Foxx and her staff in how her office resolved the case.
In March 2019, Cook County prosecutors dropped the original case against Smollett, dismissing 16 counts of disorderly conduct against him without requiring he admit any wrongdoing, in a controversial move just weeks after he'd pleaded not guilty.
When Foxx's office dropped the original charges against Smollett, the actor forfeited the $10,000 bail he had posted after his arrest. He also had performed 16 hours of community service with the Rainbow/PUSH Coalition.
Webb's investigation found possible ethical violations by Foxx's office regarding "false and/or misleading public statements made about the prosecution and resolution of the Initial Smollett case," according to the report.
"I was appointed special prosecutor because Judge Toomin believed that the circumstances under which the Smollett case was dismissed without a trial was not supported by the evidence," Webb said after Smollett's conviction earlier this month.
According to Webb's report, Foxx illegally recused herself from the Smollett case; but instead of publicly acknowledging it, she ignored it to avoid embarrassment.
But in an interview with the special prosecutor, even Foxx questioned why Smollett was initially allowed to walk without pleading guilty, only required to pay $10,000 – a fraction of what CPD says the investigation cost in overtime – and allowed actor to perform only 16 hours of community service at Rainbow/PUSH, rather than something "related to the nature of the offense." Foxx told the special prosecutor Smollett's community service with Rainbow/PUSH "might have been too easy for him."
While Webb does not have the authority to make official findings that Foxx or anyone on her staff made any ethical violations, a copy of his report will be submitted to the Illinois Attorney Registration & Disciplinary Commission to review if any such violations occurred. The ARDC is the state agency tasked with overseeing disciplinary reviews of Illinois lawyers.
"Almost across the board, lawyers who currently work in or previously worked in the CCSAO's criminal division who were interviewed by the OSP—including State's Attorney Foxx—were 'surprised' or 'shocked' by at least some facet of the dismissal terms," the reported stated.
Webb's report said it started with Foxx's decision to recuse herself from the case and appoint her number two, First Assistant State's Attorney Joe Magats.
Webb found that to be a "major legal defect" that Foxx and her office ignored because they did not want to "admit that they had made such a major mistake of judgment," only to "compound the problem" by "making false statements to the media."
According to the report, Foxx herself expressed surprise at the decision to drop charges against Smollett without a guilty plea, saying her staff apparently "wanted this guy [Mr. Smollett] out of town."
When the charges against Smollett were dropped, Foxx said the case was "treated like the other cases that have gone through our alternative prosecution model."
She said, "The Class 4 felony and no background are a background that we can expect from this type of case."
Webb's report said that statement was "determined to be untrue." Smollett does have a criminal history in California and his case was not handled in the same way as others like it, according to the report.
A list of nearly 6,000 cases that Foxx's office used to prove that Smollett was treated no differently was itself misleading, and another abuse of discretion, Webb determined.
"There were not thousands of (or, arguably any) similar cases that the CCSAO resolved in a similar way to the Initial Smollett Case," the report said.
The report called Foxx's statement "unacceptable for an office that must be transparent and maintain public confidence."
"Never, ever, ever on any occasion have they ever resolved a case this way," Webb said. "They couldn't give me one case that had ever occurred in the past."
Ultimately, Webb's investigation determined the decision to drop charges against Smollett "represented a major failure of operations."
While Foxx was not influenced or swayed by any outside people, according to the report, she did exchange calls and texts with Smollett's sister, Jurnee Smollett, five days after learning Jussie Smollett was a suspect. Foxx then "made false statements to the media claiming she ceased all communications with Ms. Smollett," the report said.
"She still continued to communicate with Jurnee Smollett and make false statements to the media about that, which I think was wrong," Webb said.
In addition, the report states "the CCSAO did not consult with the CPD about the terms of the resolution and intentionally chose not to alert the CPD that the case would be dismissed until minutes before the hearing, despite all of the diligent and hard work the CPD put into investigating the case..."
Webb's report also said this statement by Foxx was not true: "The state statute max we are allowed to get for restitution is $10,000."
Foxx responded to the summary of Webb's report by saying it "puts to rest any implications of outside influence or criminal activity on the part of the Cook County State's Attorney's Office (CCSAO) and the Chicago Police Department (CPD).
"As the report unequivocally confirms, State's Attorney Foxx was not involved in the decision-making process regarding the Jussie Smollett case at any point and there was no outside influence on that process.
"The CCSAO categorically rejects the OSP's characterizations of its exercises of prosecutorial discretion and private or public statements as "abuses of discretion" or false statements to the public. While the release does not say so, any implication that statements made by the CCSAO were deliberately inaccurate is untrue. As a result of the issues addressed in the press release, and of discussions of them beforehand, the CCSAO has already made a number of changes to its operations, including the hiring of a new CCSAO ethics officer and more separation of their function from the administration of the office, and strengthening the recusal plan with clear guidelines and explicit definitions of conflicts of interest."
In February 2020, Smollett was indicted on six new charges of disorderly conduct in connection with the police reports authorities say are false. He was convicted on five of those six counts earlier this month.
Smollett's sentencing has yet to be scheduled. The disorderly conduct charges are class 4 felonies, carrying a sentence of up to three years in prison. Smollett will remain free on bond as he awaits sentencing, which has not yet been scheduled. Smollett is due to appear in court on Jan. 27, when the sentencing date will likely be sent.
Legal analysts have said it's unlikely Smollett will face significant time behind bars, if any, and more likely will be sentenced to probation.
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