Chicago City Wire

Cook County State's Attorney Kim Foxx will not be criminally charged over her investigation into actor Jessie Smollett’s claim of a hate crime in Chicago, a special prosecutor has decided.

But Special Prosecutor Dan Webb announced last week that Foxx’s office did in fact commit numerous errors while investigating the matter.

“As a result of this investigation, the OSP (Office of the Special Prosecutor) has concluded that it did not develop evidence that would support any criminal charges against State's Attorney Foxx or any individual working at the CCSAO (Cook County State’s Attorney’s Office),” Webb stated in a 12-page release. “However, as a result of this investigation, the OSP did develop evidence that establishes substantial abuses of discretion and operational failures by the CCSAO in prosecuting and resolving the Initial Smollett Case.”

Dan Webb | https://www.winston.com/

While Foxx, a Democrat who is running for a second term against Republican Pat O’Brien — a former Circuit Court judge who used to be a Democrat — was not charged, the report raised eyebrows in Chicago and across the state and nation. Illinois Republican National Committeeman Richard Porter, a Chicago lawyer, said the county state's attorney should face severe sanctions for her actions.

“Kim Foxx should either resign or be removed and be disbarred,” Porter told Chicago City Wire. “She undermines public trust in the rule of law and betrayed her duties as an officer of the court.”

Chris Cleveland, a Republican activist and the former chair of the Chicago GOP, also said it was time for a new leader in the Cook County State's Attorney’s Office.

“Yes, she should resign,” Cleveland told Chicago City Wire. “If she were a Republican she would have been drummed out already.”

Smollett, who portrayed Jamal Lyon on the Fox TV series “Empire,” contacted Chicago Police early on Jan. 29, 2019, claiming he had been the victim of a racist and homophobic attack in Streeterville. Smollett, who is Black and gay, said two white men wearing red “Make America Great Again” caps attacked him with slurs, poured a chemical on his skin, possibly bleach, and tied a noose around his neck.

Doubts crept into the validity of his account and, on Feb. 13, 2019, police raided the home of brothers Abimbola Osundairo and Olabinjo Osundairo, where evidence indicated the Nigerian-American men, both born in Chicago, knew Smollett and had been paid $3,500 to stage the attack, according to the Chicago Sun-Times. The brothers later apologized for their role in the incident. 

Smollett, who reportedly hoped the publicity from the bogus attack would raise both his profile and salary, vanished from “Empire” as his character was written out of the show, which is set in New York City but filmed in Chicago. The actor was indicted on 16 felony counts on March 8, 2019 for falsely reporting the incident. 

Six days later, Smollett entered a not guilty plea at the Leighton Criminal Court Building in Chicago.

Then, to the great surprise of many, charges were dropped on March 26, 2019, and Judge Steven Watkins sealed court records. Prosecutors said the actor would perform 16 hours of community service and forfeit the $10,000 bond that had been posted.

Considerable outcry erupted over this development.

Webb, the former U.S. attorney for the Northern District of Illinois and co-executive chairman of Winston & Strawn law firm, was named as special prosecutor in 2019 by Cook County Circuit Court Judge Michael P. Toomin. The judge ordered Webb to review the conduct of the state’s attorney’s office and the Chicago Police Department throughout the investigation.

The City of Chicago sued Smollett for $130,105.15 to cover the cost of the investigation. Smollett countersued, declining to pay the city and saying he had become a figure of “mass public ridicule and harm.”

More than a year after the staged incident, Webb filed six felony counts of disorderly conduct against Smollett for making four false reports to law enforcement. Smollett’s lawyers claimed this amounted to double jeopardy, but a judge dismissed their assertion in June.

In his report Monday, Webb noted that prosecution of Smollett is “ongoing.” He wanted to clear the air on the conduct of Foxx, who, while she recused herself and did not personally handle the case, received updates and discussed it with her staff.

But Webb also said he did not find evidence that the case was improperly influenced by third parties such as Tina Tchen, the onetime chief of staff to former first lady Michelle Obama; Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, Inc.; and Jurnee Smollett, the sister of the accused man and also an actress.

“The OSP did not identify evidence indicating that State's Attorney Foxx's communications with these people influenced or impacted how the Initial Smollett Case was prosecuted or resolved — including the CCSAO’s decision to dismiss the case or the terms of the dismissal,” the report states.

However, while Foxx claimed she had ceased communication with the Smollett family after he was charged, Webb discovered three phone calls and numerous text messages between Foxx and Jurnee Smollett. A more comprehensive, 60-page report was compiled based on 53 interviews and the study of text messages, audio recordings and 120,000 pages of documents.

“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 report states.

Misleading statements were made as well, Webb reported.

“The CCSAO issued a press statement on March 26, 2019 (the day of the dismissal) that stated: ‘In the last two years, the Cook County State's Attorney's Office has referred more than 5,700 cases for alternative prosecution. This is not a new or unusual practice. An alternative disposition does not mean that there were any problems or infirmities with the case or the evidence. . . . This outcome was met under the same criteria that would occur for and is available to any defendant with similar circumstances.’

“The Initial Smollett Case did not fit the criteria the CCSAO’s chief data officer used to identify the cited 5,700 figure because all of those cases were referred to a diversion program, unlike Mr. Smollett’s case; therefore, the resolution of the initial Smollett Case was meaningfully different from how those 5,700 cases were resolved," Webb's report continued. “There were not thousands of (or, arguably any) similar cases that the CCSAO resolved in a similar way to the Initial Smollett Case. The CCSAO could not identify any specific similar CCSAO cases it relied upon when resolving the Initial Smollett Case.”

Foxx and acting state’s attorney Joseph Magats — who has told the media he believes Smollett to be guilty — repeated the false claim of 5,700 similar cases in media interviews on March 26-27. That was inaccurate, Webb said, but he did not have the authority to pursue sanctions for the misstatements.

However, Webb's report will be submitted to the Illinois Attorney Registration & Disciplinary Commission if it wishes to review any violations of the Illinois Rules of Professional Conduct or to conduct disciplinary proceedings.