‘Just because we can charge something doesn’t mean we should…’
(Megan Crepeau, Chicago Tribune) Just after news broke that “Empire” actor Jussie Smollett had been indicted on 16 felony counts, Cook County State’s Attorney Kim Foxx told her top deputy that Smollett was a “washed up celeb who lied to cops” and the number of felony counts he faced was excessive, communications obtained by the Chicago Tribune show.
“Sooo… … I’m recused, but when people accuse us of overcharging cases … 16 counts on a class 4 (felony) becomes exhibit A,” Foxx said in a text message to Joseph Magats, her top assistant, on March 8.
Foxx went on in those texts to Magats to compare Smollett’s case to the office’s pending indictment of R&B singer R. Kelly on 10 charges of aggravated criminal sexual abuse.
“Pedophile with 4 victims 10 counts. Washed up celeb who lied to cops, 16 (counts),” she wrote. “ … Just because we can charge something doesn’t mean we should.”
Smollett, who is African American and openly gay, had been indicted on 16 counts of disorderly conduct on charges he staged a hate crime attack on himself. Foxx’s office created a firestorm of protest after abruptly dropping all the charges less than three weeks later at a court hearing that reporters only learned about at the last minute.
Late Tuesday, Foxx’s office made public thousands of internal texts and emails on the Smollett case in response to public-records requests by the Tribune.
The office, though, denied outright requests for its internal files, saying it did so because the judge presiding over the case had agreed to seal the public court file moments after prosecutors dropped all the charges. The Chicago Police Department has also denied public-records requests for its internal documents on the same grounds.
The majority of documents released Tuesday do not deal with the substance of the case and do little to illuminate why prosecutors decided to dismiss the charges so soon after bringing them.
But they show that the office was largely caught flat-footed by the massive response from the news media to its own stunning reversal.
Texts between top-level prosecutors and its communications office show a scramble to coordinate their messaging and futilely try to tamp down the heated controversy.
“Just wish I could have anticipated the magnitude of this response and planned a bit better!” Assistant State’s Attorney Risa Lanier, the lead prosecutor on the high-profile case, texted Magats hours after the charges were dropped.
“There’s really no planning for this,” Magats responded. “It’s the right decision.”
“I agree and absolutely stand by the decision made,” Lanier replied.
In addition, it appeared the prosecutors’ office notified Chicago police only moments before the charges were dropped as reporters were already gathering in the courtroom — tipped off by a publicist for Smollett’s legal team.
“It appears as if Jussie’s press person may have notified the press,” Lanier texted three spokespeople on the morning the case was dismissed.
A short time later, a spokeswoman texted back to say she had notified a Police Department spokesman who would notify Superintendent Eddie Johnson.
About 10 minutes later, Foxx texted Magats: “Eddie just called. (He) needed to know how to answer questions from press.”
Foxx said she told Johnson that Smollett’s charges were dismissed since he completed community service and turned over his bond money — $10,000 — to the city.
“He seemed satisfied with the explanation,” Foxx told Magats.
However, Johnson and Mayor Rahm Emanuel held a news conference that morning slamming the decision — “a whitewash of justice,” the mayor said.
Foxx withdrew herself from the case in February after she had been in contact with one of Smollett’s relatives early during the investigation. But Foxx’s office has since said she removed herself from the case only informally, since an actual recusal would have required her entire office to step aside and request the appointment of a special prosecutor.
When asked why the state’s attorney continued to communicate about the case after her withdrawal, a spokeswoman issued a statement Tuesday night on Foxx’s behalf saying she reached out to Magats only “to discuss reviewing office policies to assure consistencies in our charging and our use of appropriate charging authority.”
Smollett found himself at the center of an international media firestorm after he reported being the victim of a Jan. 29 attack by two people who shouted slurs, hit him and wrapped a noose around his neck. Police initially treated the incident as a hate crime, but their focus turned to Smollett after two brothers who were alleged to have been his attackers told detectives that Smollett had paid them $3,500 to stage the attack, with a promise of an additional $500 later.
The move to drop charges has provoked fierce criticism. Emanuel’s administration has sued to try to force Smollett to reimburse Chicago for the more than $130,000 in overtime police expenses spent investigating the alleged hoax even though all the charges against the “Empire” actor were dropped.
Foxx has faced mounting pressure to explain in more detail why the prosecution of Smollett was so quickly abandoned. In an op-ed in the Tribune, she backed off her office’s initial stance that the case was strong, writing that they were uncertain of a conviction, but she offered no specifics.
At her request, Cook County Inspector General Patrick Blanchard agreed last week to investigate the office’s handling of the Smollett case.
(Chicago Tribune’s William Lee contributed to this report.)
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