BY: CHRIS FRANCESCANI
(CHICAGO) — Despite “substantial abuses of discretion and operational failures,” the dismissal of charges against Jussie Smollett by Cook County State’s Attorney Kimberly Foxx and her staff did not rise to the level of criminal wrongdoing, according to Special Prosecutor Dan K. Webb.
In Jan. 2019, the former “Empire” actor told police he was targeted in a racist and homophobic attack in which he claimed the attackers struck him, put a noose around his neck, and poured some sort of chemical substance on him.
After an investigation, police determined that Smollett staged the attack, hiring two brothers to help pull it off. He was charged and indicted, but Foxx’s office dropped all the charges in March, 2019. That prompted Webb’s appointment last summer by a judge to investigate what happened.
Webb said he concluded that Foxx shouldn’t legally have recused herself and appointed a deputy, Joseph Magats, to be acting state’s attorney and that when she learned of this “major legal defect” she “ignore[d]” advice on how to remedy the problem. The proper procedure was to “recuse the entire CCSAO and petition the court to appoint a special prosecutor.”
He also said that Foxx maintained contact with Smollett’s sister, Jurnee Smollett, even after learning on Feb. 8 that he was a suspect, and “then made false statements to the media claiming she ceased all communications with Ms. Smollett as soon as she learned that Mr. Smollett was a suspect.” Webb contends that Foxx was in contact with the sister until Feb 13, 2019.
In addition, Webb wrote that prosecutors in Foxx’s office “did not learn of any new evidence between when the CCSAO filed a 16-count indictment against Mr. Smollett on March 7, 2019, when the CCSAO believed it had a strong case against Mr. Smollett, and March 26, 2019, when the entire indictment was dismissed.”
Webb further contended in the report that under subpoena, key decision-makers in Cook County State’s Attorney’s Office (CCSAO)’s dismissal of the case offered “significantly and meaningfully divergent explanations for how the resolution was reached.”
Foxx said in a statement that her office “categorically rejects the [special prosecutor]’s characterizations of its exercises of prosecutorial discretion and private or public statements as ‘abuses of discretion’ or false statements to the public,” and that “any implication that statements made by the CCSAO were deliberately inaccurate is untrue.” She said her office would submit a written response to the full report after receiving it.
‘An abundance of caution’
Foxx recused herself abruptly from the case on Feb. 19, 2019, out of “an abundance of caution … based on familiarity with potential witnesses in the case,” a spokesperson said at the time. Smollett was soon charged with felony disorderly conduct for filing a false police report, and turned himself in to police. On March, 8, 2019 a grand jury returned a 16 count indictment against him. Less than three weeks later, Foxx’s office dismissed all charges against Smollett.
The conclusions of Webb’s investigation into Foxx’s office completes the second half of the special prosecutor’s mandate.
He was appointed last year by Cook County Circuit Judge Michael Toomin to determine whether Smollett should be prosecuted again after Foxx’s office dismissed the charges and investigate the CCSAO’s handling of the case. Webb concluded that Smollet should.
In February, an Illinois grand jury presented with Webb’s findings indicted Smollett on six counts of disorderly conduct related to making four separate false reports to Chicago Police Department officers. Smollett’s trial has been delayed by the pandemic.
Foxx acknowledged in her statement that lessons were learned following the fallout from her decision to drop the charges against Smollett.
“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 March, Foxx won a Democratic primary and is expected to prevail against her Republican opponent in November, two years after winning a previous Democratic primary for which she went on to win 72% of the general election vote, according to the Chicago Tribune. She manages the second largest prosecutor’s office in the U.S., behind only the Los Angeles County District Attorney, according to the CCSAO website.
ABC News’ Josh Margolin, Stephanie Wash, Alex Perez, Karma Allen and Bill Hutchinson contributed to this report.
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