Chicago, Illinois: Cook County State’s Attorney Kim Foxx is open to an outside investigation into her office’s decision to drop all charges against Jussie Smollett, the prosecutor wrote in a newspaper editorial.
Foxx said in a Friday night op-ed for the Chicago Tribune that a review about prosecutors’ decision to dismiss all 16 felony counts against the “Empire” actor would help maintain transparency. The dismissal drew an immediate rebuke from Chicago Mayor Rahm Emanuel and Police Superintendent Eddie Johnson, with the mayor calling it a ”whitewash of justice .”
“I am not perfect, nor is any other prosecutor out there, but ensuring that I and my office have our community’s trust is paramount,” Foxx wrote.
Smollett was accused of faking a racist, anti-gay attack on himself in January.
While Foxx said Tuesday’s decision to drop the charges does not exonerate Smollett, as the actor has claimed, she indicated that some of the evidence made getting a conviction “uncertain.”
“In determining whether or not to pursue charges, prosecutors are required to balance the severity of the crime against the likelihood of securing a conviction,” Foxx wrote. “For a variety of reasons … my office believed the likelihood of securing a conviction was not certain.”
Police maintain that Smollett staged the attack to promote his career, and Chicago officials have ordered him to pay more than $130,000 to cover the cost of the investigation.
Foxx said Smollett’s “alleged unstable actions have probably caused him more harm than any court-ordered penance could.” But she added that jails should be reserved for those who commit violent crimes.
Kim Foxx: I welcome an outside review of how we handled the Jussie Smollett case
Let’s talk about the Jussie Smollett case. Let’s talk about his alleged actions, the decision about how best to prosecute and resolve the case, and the implications for our Chicagoland community.
There was considerable evidence, uncovered in large part due to the investigative work of the Chicago Police Department, suggesting that portions of Smollett’s claims may have been untrue and that he had direct contact with his so-called attackers. Claims by Smollett or others that the outcome of this case has “exonerated” him or that he has been found innocent are simply wrong. He has not been exonerated; he has not been found innocent.
Falsely reporting any crime is itself a crime; falsely reporting a hate crime is so much worse, and I condemn in the strongest possible way anyone who does that. Falsely reporting a hate crime causes immeasurable harm to the victims of actual crimes, whether because they are less likely to be believed or, worse, because they are afraid to report their crimes in the first place for fear of not being believed.
So, why isn’t Smollett in prison or at least on trial? There are two different answers to this, both equally important.
First, the law. There were specific aspects of the evidence and testimony presented to the office that would have made securing a conviction against Smollett uncertain. In determining whether or not to pursue charges, prosecutors are required to balance the severity of the crime against the likelihood of securing a conviction. For a variety of reasons, including public statements made about the evidence in this case, my office believed the likelihood of securing a conviction was not certain.
In the interest of full transparency, I would prefer these records be made public. However, in this case, Illinois law allows defendants in certain circumstances to request that public records remain sealed. Smollett chose to pursue that avenue, and so my office is barred from releasing those records without his approval.
Another key factor is that the crime here was a Class 4 felony, the least serious category, which also covers things like falsely pulling a fire alarm in school and “draft card mutilation.” These felonies are routinely resolved, particularly in cases involving suspects with no prior criminal record, long before a case ever nears a courtroom and often without either jail time or monetary penalties. Any prosecutor, law-enforcement leader or elected official not grandstanding or clouded by political expediency understands the purpose of sentencing guidelines.
But more important than the dispassionate legal justification, there was another reason that I believe our decision not to prosecute the case was the right one.
Yes, falsely reporting a hate crime makes me angry, and anyone who does that deserves the community’s outrage. But, as I’ve said since before I was elected, we must separate the people at whom we are angry from the people of whom we are afraid. I am angry at anyone who falsely reports a crime. I am afraid when I see a little girl shot dead while sitting on her mother’s lap. I am afraid when I see a CPD commander slain by a four-time felon who was walking the streets. I am also afraid when I see CPD resources used to initially cover up the shooting death of Laquan McDonald.
I was elected on a promise to rethink the justice system, to keep people out of prison who do not pose a danger to the community. I promised to spend my office’s finite resources on the most serious crimes in order to create communities that are both safer and fairer.
Our community is safer in every sense of the word when murderers and rapists are locked away. But we can’t allow fearmongers to devalue the tremendous progress we’ve made in the last year. Since taking office, I’ve sought to employ alternative prosecutions, diversions, alternate outcomes and other forms of smart justice, and it has been working — violent crime in Chicago is down overall. In addition to the benefits of smart justice on recidivism and keeping families together, it also creates bandwidth for my office to dedicate more resources to combating not only truly violent crimes but also the opioid crisis, holding big banks accountable for their actions, protecting consumers from data breaches and other critical work.
Since it seems politically expedient right now to question my motives and actions, and those of my office, let me state publicly and clearly that I welcome an outside, nonpolitical review of how we handled this matter. I am not perfect, nor is any other prosecutor out there, but ensuring that I and my office have our community’s trust is paramount.
As a public figure, Smollett’s alleged unstable actions have probably caused him more harm than any court-ordered penance could. None of that, though, should detract from two facts that must be able to coexist: First, falsely reporting a hate crime is a dangerous and unlawful act, and Smollett was not exonerated of that in this case. Second, our criminal justice system is at its best when jails are used to protect us from the people we rightly fear, while alternative outcomes are reserved for the people who make us angry but need to learn the error of their ways without seeing their lives irrevocably destroyed.
Kim Foxx is the Cook County state’s attorney.