Chicago City Wire

Missouri Attorney General Andrew Bailey’s recent move to fire a soft-on-crime circuit attorney is a public safety check that the attorneys general in many states have over their regional prosecutors. In Illinois, the Attorney General has no legal authority to remove a habitually negligent county prosecutor as many have characterized Cook County State’s Attorney Kimberly Foxx. 

Under state law, removing Foxx requires petitioning the Circuit Court of Cook County with a charge that she is “sick, absent, or unable to fulfill the State’s Attorney’s duties.”

The easy part under the law is that any citizen is permitted to file a petition, but getting it considered by the court, especially in Cook County, is another matter, according to one long-time criminal defense attorney. The petition would hit a wall of politics.

“You have maybe two judges on the circuit court that might be willing to entertain such a petition,” the attorney, who asked not to be identified, said. “But then you have Evans (Chief Judge Timothy Evans) who’s a political ally of Foxx. A petition there doesn’t have a chance.”

Foxx has a long history of siding with offenders over public order, from the high-profile case of actor Jussie Smollett who faked a hate crime to allowing 18-year-old Steven Montano, involved last year in a drive-by shooting, to walk. It was Montano who was charged with murdering Chicago police officer Andres Vasquez Lasso near Gage Park last week.

“Last year Kim Foxx rejected aggravated battery charges requested by police against Montano,” Pat O’Brien, a 2020 candidate for State’s Attorney, wrote on March 3 on his “Pat O’Brien for Justice” Facebook page. “Montano was one of three offenders fleeing in a stolen car used in a drive-by shooting. Montano was arrested hiding under a porch. Only one of the 3 offenders was charged with aggravated battery. Under ‘accountability law’ each offender who ‘aids or abets' a crime can be charged and convicted.”

In the Smollett case, a special prosecutor, former U.S. Attorney Dan Webb, was appointed after Foxx dismissed the case despite overwhelming evidence of Smollett’s guilt compiled by the police. 

In a December 2021 WTTW Chicago Tonight interview, Webb said Foxx's office could not explain how it came to the decision to dismiss the original disorderly conduct indictment filed against Smollett, calling that move ‘massive confusion and an operational failure.'” 

“To totally dismiss the entire case, require no plea of guilty by Mr. Smollett at all … just give him a complete pass so he can walk out on the street and say to Chicago: ‘Goodbye, I did nothing wrong and I’m out of here,’ after what he did to the Chicago Police Department, for that resolution to have occurred is a disgrace,” Webb said. “It is a disgrace and that’s what caused this whole thing.”

Webb asked the Illinois Attorney Registration and Disciplinary Commission (ARDC) to investigate Foxx and her office.

The ARDC could recommend that the state Supreme Court disbar Foxx if an investigation finds egregious misconduct. In that case, she would have to step down as state’s attorney.

It’s unclear where the ARDC investigation stands, or whether one is even underway.

A spokesman for the ARDC said only that he was aware of Webb’s request but couldn’t comment on whether an investigation was even started. 

Webb did not respond to an request for comment. 

Foxx’s communications office responded in an email that “SA Foxx is not aware of any pending matters before the ARDC involving special prosecutor Dan Webb.”

Foxx’s reluctance to prosecute has real world, disturbing outcomes, critics say.

“There are new felonies charged to pretrial defendants out on bond for offenses other than murder, attempted murder, or shootings,” the news service Wirepoints recently reported. “These already-pending charges, which demonstrate community risk ignored by bond court judges and prosecutors, include sexual assault and attempted sexual assault; plus robbery – again and again and again and again; carjacking and attempted carjacking; battery; theft; and burglary.”

Last January, Chief Judge Evans addressed the city’s crime problem in a speech at the Union League Club, and was blasted by former Tribune columnist John Kass. In a piece entitled “Chief Judge’s Message to Crime-Plagued Chicago: Help Isn’t Coming, You’re On Your Own,” Kass wrote:

“Evans was defending his liberal and controversial ‘bail reform’ policy, supported by the ethically challenged and Soros-backed Cook County State’s Attorney Kim Foxx and by her patroness, Cook County Board President Toni Preckwinkle, who has made it her mission to shrink the population of the Cook County Jail. They’ve all been supported by Illinois Gov. J.B. Pritzker, who governs from fear.”

It was retired Judge Michael Toomin who appointed Webb in the Smollett case, and he paid the political price for it.  The county Democratic Party did not endorse the long-time judge, and he nearly lost his retention bid.

“His retention became another flashpoint between County Board President Toni Preckwinkle, who supports his removal, and Mayor Lori Lightfoot, who echoed Toomin’s comments that the lack of endorsement seemed like retaliation,” the Chicago Tribune wrote in November 2020.