Special prosecutor’s report on handling of Jussie Smollett matter outlines ‘major failure’ in Kim Foxx’s office

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CHICAGO — Cook County prosecutors including State’s Attorney Kim Foxx repeatedly went out of bounds in their handling of the Jussie Smollett case — then misled the public over and over in an attempt to save face after the matter blew up into controversy, according to a special prosecutor’s report released Monday.

The 59-page report from Special Prosecutor Dan Webb found no evidence of criminal wrongdoing or improper influence by clouted activists or celebrities.

But it paints a portrait of an office in disarray. Foxx ignored crucial legal advice from colleagues, then helped draft false press statements saying she was not aware of their counsel. The two high-level prosecutors in charge of the case gave diametrically opposed accounts of how Smollett’s unprecedented deal was reached. Foxx and other prosecutors repeatedly gave false public statements about why the case was dismissed, about the nature of Smollett’s dismissal and about Foxx’s so-called “recusal” from the case.

The handling“represented a major failure of operations,” the report states. And Foxx herself stated under oath that she was surprised at how the case was resolved, according to the report.

And in the end, one question remains unanswered: Why did Cook County prosecutors resolve the Smollett case in the way that they did?

The report Webb’s team was ordered released Monday by Judge Michael Toomin.

“The need for disclosure, I think it can safely be said, is greater than the need for continued secrecy at this time,” Toomin said.

Webb’s team had brought Smollett to trial on new charges, resulting in a conviction earlier this month on five of six counts of disorderly conduct.

But Webb’s investigation of the initial Smollett case potentially has further-reaching consequences, providing a glimpse of top prosecutors’ decision-making in an enormously high-profile matter.

And intriguingly, the two Cook County prosecutors who took the lead in handling the Smollett case gave sharply contradictory answers about how the case was resolved. Then-First Assistant Joseph Magats and then-Chief of the Criminal Prosecutions Bureau Risa Lanier gave different answers about who handled negotiations with Smollett’s team, when those discussions began, and whether Smollett was given a chance to enter a formal deferred-prosecutions program.

Foxx told special prosecutors under oath that she was “surprised” at the lenient deal her office struck with Smollett and that she got the impression it was handled that way because “they wanted this guy out of town.”

Among the concerns Foxx expressed in her full-day interview was that Smollett was not required to plead guilty to any charge, only had to pay $10,000 in restitution, and was only ordered to perform minimal community service that did not reflect the seriousness of reporting a fake hate crime.

Foxx said the case had brought “a flurry of activity to the courthouse” and “being able to have the case resolved would eliminate throngs of people who were coming to court,” according to the report.

She acknowledged in the interview that sparing the courthouse attention was not the right reason to handle the case the way the state’s attorney’s office did.

“I think the kind of negotiating, let’s get rid of that guy, at the expense of what his actions really did to the city shortchanged, I think, the accountability that the city deserved,” Foxx was quoted in the report as saying.

The report also blasts Foxx’s op-ed in the Chicago Tribune that said the case against Smollett had issues that made conviction uncertain. That was the exact opposite of what everyone in the state’s attorney’s office — including Foxx herself — really believed.

“(Smollett) had no wiggle room,” then-Assistant State’s Attorney Nicholas Trutenko, who helped develop evidence in the grand jury to charge Smollett, told the special prosecutors. “The case against him was air tight.”

Every other supervisor or prosecutor close to the case had similar things to say to Webb’s office, according to the report. One supervisor called it the strongest case he’d ever seen and that he’d never seen a case like it “fall apart in a month.” Liam Reardon, another felony review prosecutor on the case, said “a very inexperienced third chair could have put this case on and won.”

After the outcry over the initial case’s dismissal, the state’s attorney’s office repeatedly gave statements saying that Smollett’s case was resolved in a way similar to thousands of other cases. But when pressed, they could not identify any significantly similar cases, according to the report.

“The fact that such a significant mischaracterization could be asserted without sufficient vetting, repeated by figureheads of the (Cook County State’s Attorney’s Office), and then never corrected or clarified — particularly in a case the CCSAO knows has captured the public attention — is unacceptable for an office that must be transparent and maintain public confidence,” the report states.

Webb’s report also details Foxx’s communications with three people about the Smollett investigation — Smollett’s sister, Jurnee, Sherrilyn Ifill, the president of the NAACP Legal and Educational Fund, and Tina Chen, the former chief of staff to Michelle Obama.

The communications led to widespread allegations that Foxx’s potential conflicts prompted the dismissal of Smollett’s case even though she said she’d recused herself from the investigation.

The special prosecutors’ probe found no evidence that the conversations resulted in an improper influence over how the investigation was handled.

But Webb’s team did find that Foxx repeatedly misled the public about the timing of some of the communications, particularly when she cut off communications with Jurnee after learning that her brother was suspected of faking the attack on himself.

Jurnee had first contacted Foxx a few days after the Jan. 29 attack to air concerns about leaks apparently coming from Chicago police, according to the report. Foxx told her that she would ask then-police Superintendent Eddie Johnson about having the FBI potentially take over the case.

“Omg this would be a huge victory,” Jurnee texted.

“I make no guarantees, but I’m trying,” Foxx responded.

On Feb. 13, 2019, just days before Smollett was charged, Jurnee reached out to Foxx twice to talk about the direction of the case. In the first call, which lasted about 14 minutes, Foxx and Jurnee talked about the skin color and nationality of the two suspected attackers and whether Jussie was considered a suspect. As they spoke, Jurnee was texting with her brother, “On phone with (Foxx) now ... she can’t talk with you,” according to the report.

The second call later that night was different. Jurnee told investigators Foxx said she was recusing herself and could no longer provide updates on the case. Jurnee said she “read between the lines” and asked Foxx if Jussie was going to be charged with a crime.

“Your brother should be fine as long as he stays consistent,” Foxx said, according to Jurnee’s recollection to investigators about the 13-minute call.

Foxx said in her sworn interview that she had no recollection of the second phone call or telling Jurnee that her brother would be “fine,” according to the report.

“While the OSP believes that (Foxx) misrepresented publicly the timing of when she ceased communicating with Ms. Smollet,” the report stated, “Based on the evidence, the OSP has concluded that Ms. Smollett did not attempt to and in fact did not influence how the initial Smollett case was prosecuted or resolved by (the state’s attorneys’ office).”

Webb’s report made similar conclusions about the “very limited communications” between Foxx and Tchen, CEO of Time’s Up and a former chief of staff to Michelle Obama, that occurred early on in the investigation.

Tchen told investigators that Jurnee had initially reached out to her because she was her only legal contact in Chicago. Tchen, who has experience in victims’ advocacy, said she told Jurnee what she would tell any client, that Smollett “needed a local lawyer to help him navigate the local criminal justice system.”

Later, on Feb. 1, Tchen called Foxx to relay some of Jurnee’s concerns. During the eight-minute call, Tchen said she asked Foxx to reassure Smollett’s family that the case was being handled properly” but that there was no other discussion about the details of the investigation or the direction it was headed, according to the report.

After the call, Foxx texted Tchen to say that she’d reached out to Johnson about the FBI getting involved. “Thank you. I think jussies sister Jurnee is going to call you,” Tchen replied, according to the report.

Foxx and Tchen didn’t speak again about the case until March 13, when the state’s attorney texted Tchen to warn her that their texts were being released to the media via public records requests.

“As a general matter, there is nothing improper about Ms. Tchen, in an attempt to help a victim navigate the justice system, and to raise concerns about information being released about the investigation, calling State’s Attorney Foxx,” the report stated.

Foxx’s office also issued false press statements about her “informal” recusal from the Smollett matter. Foxx was aware that a top prosecutor, Alan Spellberg, had informed her the recusal was legally improper, according to the report — but she helped draft statements to the press that said the exact opposite. It was a clear-cut example of a cover-up, the report states.

“When shown these public statements stating that she had not been aware of Mr. Spellberg’s legal analysis, State’s Attorney Foxx admitted to the OSP that they were ‘not accurate.’”

Toomin made the decision to make the document public after a brief hearing Monday morning, at which Webb urged Toomin to release the report so public trust in the court system could be restored. Smollett’s first Cook County criminal case was dropped in 2019 “under what, at best, could be called mysterious or unusual circumstances,” Webb said.

“The public’s perception is that it’s possible in Cook County there’s two different systems of justice,” he said in court. “One is for the ordinary person that finds himself or herself in issues with violating the law, and the other is with privileged people like Mr. Smollett.”

Attorneys for Smollett did not appear in court; however, Ruben Castillo, former chief judge of the Northern District of Illinois, appeared on behalf of the Cook County State’s Attorney’s office.

Castillo noted only that the office had cooperated fully with the investigation, and his team could not take a position on the document’s release since it had not seen the report.

While the full report has remained under wraps, Webb’s team wrote a summary of their conclusions that was released in August 2020. The report slated for release Monday will detail the evidence that underlies those conclusions, Webb said.

“I think the public’s entitled to know the evidence,” Webb told reporters after the hearing. “... You had my factual report released a year ago, I concluded there was significant improper conduct that occurred in the state’s attorney’s office ... the public has a right now to see the evidence that supports the conclusions I reached.”

The much briefer summary released in August 2020 concluded that Webb’s team did not find evidence of criminal conduct, but prosecutors including Foxx acted unethically by repeatedly making false or misleading public statements about the Smollett matter, according to the news release. Overall, their investigation found “substantial abuses of discretion and operational failures” throughout the state’s attorney’s office.

Toomin has already twice denied Webb permission to release the full details of his investigation since the report contains information gathered as part of grand jury proceedings, which by law are kept secret. Not even Smollett’s attorneys were allowed to see the complete report.

But now that Smollett has been convicted of falsely reporting to police that he was the victim of a hate crime attack, Webb tried again, arguing that Toomin appointed a special prosecutor in part to restore public confidence in the court system after Cook County prosecutors’ handling of the matter.

”The trial of Mr. Smollett being complete, it is now appropriate for the seal on the OSP’s Summary Report to be lifted and for it to be publicly available,” Webb wrote in a motion filed Wednesday.

But Smollett has not yet been sentenced, and his attorneys have promised to appeal, meaning the case could be tied up in courts for years to come.

And when Toomin ruled last year that the report should be kept under wraps, he said nothing about doing so to protect Smollett’s trial rights. Instead, he said, much of the information in the report was already available publicly through other sources, and so there was no need to disturb the confidentiality of the grand jury process.

Smollett’s initial charges were dropped at an unannounced hearing in March 2019, not long after the actor’s indictment, and in the days afterward prosecutors gave contradictory answers about why.

Webb was ultimately named special prosecutor and given a two-pronged mandate: determine whether Smollett should be charged again, and investigate whether police or Cook County prosecutors engaged in wrongdoing.

Smollett was charged again in February 2020 and was convicted on five out of six counts of disorderly conduct.