Cook County State’s Attorney Kim Foxx acknowledges she did not see video of Adam Toledo shooting or read errant statement before court hearing

CHICAGO — Cook County State’s Attorney Kim Foxx had not yet seen the footage of 13-year-old Adam Toledo’s fatal shooting at the time prosecutors were giving their first description of his killing by police, Foxx told The Chicago Tribune on Thursday.

And, contrary to what Foxx said was standard practice in such high-profile cases, she did not review the words of that now-controversial description before it was read in court.

“I recognize the significant public interest in this case, the horrific end of a life for a 13-year-old boy at the time when police engagement is under tremendous scrutiny,” Foxx said. “And (I recognize) that our version of events at that time was the only version of events that people had, and people give great trust to that.”

The office has been under heavy fire for a week after publicly disavowing their in-court statement about Toledo’s shooting, saying they should not have phrased it in a way that could imply Toledo was armed at the moment an officer shot him.

Watched in aggregate, the videos show Toledo apparently tossing a gun away just a split second before the officer fires, though investigators are still trying to determine the precise moment at which Toledo was shot.

The apparent difference between the video and the narrative that took hold after prosecutors’ statement sparked condemnation around the country.

“We have taken the last week to figure out who should have flagged it, what the discrepancy was, why the discrepancy was made and what happened along the chain to allow this to happen,” Foxx told the Tribune.

When asked why the office waited six days to publicly clarify their statement, Foxx said the question was “valid, and it is one of the things we’re trying to get an answer to and make available to the public.”

“It’s not lost on me that this does look fishy, it’s not lost on me that this has shaken confidence, it is something I personally am concerned about, have been concerned about from the beginning, and we want to make sure that we are public with what happened here and how we make sure this doesn’t happen again,” she said.

Foxx was elected in 2016 after harshly criticizing her predecessor’s handling of another police shooting: the death of 17-year-old Laquan McDonald at the hands of Officer Jason Van Dyke.

Until last week, Foxx’s office arguably has not faced such intense criticism since early 2019, when prosecutors abruptly dismissed all charges against actor Jussie Smollett under circumstances that are still unclear. Smollett had been accused of orchestrating a phony hate crime on himself, and the case drew international attention, particularly after it was dropped and high-level prosecutors gave shifting reasons about why.

A special prosecutor assigned to investigate the matter later found “substantial abuses of discretion” in Foxx’s office and determined that Foxx herself had misled the public about key pieces of the Smollett story.

Regardless, Foxx was re-elected last year as one of a slate of progressive prosecutors nationwide calling for systemic change in the justice system.

The prosecutor who made the April 10 statement — known as a proffer — was Assistant State’s Attorney James Murphy, who was placed on administrative leave the day after the video was released. Murphy is widely liked among rank-and-file prosecutors and much of the defense bar, and the measure was generally viewed as throwing him under the bus.

Foxx was careful to say she does not believe Murphy lied or deliberately misled anyone.

“Factually, yes, the description of (Toledo) having the gun, where the gun was placed in the lead-up to the shooting, was accurate,” she said. “But ... the impression that was left with many that the gun was in his hand at the time that he was shot.”

Among other things, the office is investigating whether Murphy had access to the entirety of the evidence that had been turned over to the office, Foxx said.

“The information Mr. Murphy relied upon, did he have the fullness of the information, and if not, what is it within the office that would allow that to happen?” she said.

Murphy said in court that he had seen footage of the shooting. Foxx on Thursday declined to say who else among her staff had seen which evidence and when, noting the matter is still under investigation.

But she did say that while one of her staffers had given her a description of the footage ahead of time, she did not watch the video of Toledo’s shooting until April 12, two weeks after Toledo’s death and two days after the prosecution’s description of his shooting.

And she did not read that description before it was given in court, even though the usual practice in the office is to bring high-profile bond proffers to her attention ahead of time, Foxx said.

A source familiar with the matter told the Tribune that nobody above Murphy — including Foxx — had read the proffer before it was read to a judge.

“Reporters, media, the public, had an impression that our office gave, and we have to be accountable,” Foxx said Thursday. “And by we, (I mean) me, it’s my office, my name is on the door, everything that happens, the buck stops with me.”

The statement was given in court April 10 during a bond hearing for Ruben Roman, the 21-year-old man who was with Toledo the night of the shooting.

Roman is charged with felonies including child endangerment, and in order to bolster their assertion that Roman’s acts helped lead to Toledo’s death, Murphy gave a description of the shooting.

Toledo had a gun in his right hand as he turned toward the officer, Murphy said. “The officer fires one shot at (Toledo), striking him in the chest. The gun that (Toledo) was holding landed against the fence a few feet away.”

While each of those sentences in isolation appear to be supported by the video, prosecutors did not mention in court that at the precise moment Toledo was shot, his hands may have been empty.

And immediately after Murphy gave his narrative of the shooting in court, news accounts stated prosecutors said 13-year-old Toledo was holding the weapon at the exact moment a Chicago police officer shot him.

The state’s attorney’s office did not publicly dispute or question those stories until April 15, the day the video was released.

But they knew by April 14 that they could not fully stand by their first proffer, Foxx said. On that date, a different prosecutor spoke about Toledo’s death at a hearing related to Roman’s probation on a previous case and included no description at all of when Toledo was holding the gun. According to a transcript of that hearing, the prosecutor mentioned only that Toledo was fatally shot by police.

At that point, they were not “feeling confident in the depiction that was given on that first day,” and so they modified the description of the shooting for the subsequent hearing, Foxx said.

Foxx said she understood that last week’s events have been “jarring” for prosecutors, many of whom have told the Tribune that morale is flagging badly since the controversy over the bond proffer and Murphy’s placement on leave.

“I don’t want to be in the position … of rushing to judgment,” she said. “I know there was an error made, we’re trying to figure out how and who’s responsible and what to do next ... but yeah, it is a difficult time for many in our office.”

Meanwhile, Foxx said prosecutors are working “as quickly as possible” to determine whether the officer who shot Toledo should face criminal charges. The officer, Eric Stillman, has already appeared to speak with prosecutors on the matter, sources have said.