The Foxx-Smollett report: Anytime you’re ready, Mr. Webb
In Chicago and across the U.S., Americans have marched in their streets to demand equitable treatment of people who encounter law enforcement. That equity should exist not only when citizens interact with police officers, but when defendants stand accused in courtrooms.
The case of actor Jussie Smollett synthesizes those good intentions down to this: Does Cook County dispense equal justice, in the public eye, to all defendants? Or does the criminal justice system here offer special favors to those who have political or other insider leverage?
More than four months ago, a special Cook County grand jury indicted Smollett on six counts of disorderly conduct alleging that he orchestrated a racist and homophobic attack on himself in January 2019.
And less than four months from now, early voters will be deciding whether to give State’s Attorney Kim Foxx a second term or replace her with Patrick W. “Pat” O’Brien, a former prosecutor, assistant Illinois attorney general and Cook County judge.
But those voters have yet to see the findings of special prosecutor Dan Webb’s investigation into the controversial way Foxx’s office handled the case. Webb, a former U.S. attorney, said in February he would issue a final report to the judge who appointed him and to the Cook County Board of Commissioners. Voters also don’t know the real story behind recent flip-flops from two brothers who have been inconsistent regarding their role in the alleged scheme.
Foxx won’t publicly answer many questions about the case. She told the Tribune Editorial Board that doing so would undercut Webb’s investigation of her and her office. We continue to disagree; Foxx can say what she wants and Webb can conclude what he wishes.
We don’t know Webb’s timetable. But as the voters of Chicago and Cook County weigh their options, we reiterate the most crucial questions about this case — questions he and his team should resolve. Foxx’s refusal to speak in specifics has intensified local and national suspicion that someone, or several someones, improperly influenced her office. Smollett isn’t the main issue here. The conduct of the state’s attorney’s office is.
That issue isn’t one decision or action by Foxx and her prosecutors, but a weekslong series of decisions and actions. Recall that her assistants secured 16 felony charges against Smollett from an earlier grand jury. Yet 18 days later they dropped the case — claiming they had learned no new information that would undercut the prosecution.
Mr. Webb, citizens will judge how you answer these questions. So we’ll restate in one place the most pressing issues that you and your investigators cannot leave hanging.
Who tried to influence Foxx or her prosecutors?
At each point along the timeline of this January 2019 case, what is the full list of outsiders — and their intermediaries — who tried to influence how Foxx’s office handled it? What prime mover motivated politically connected lawyer Tina Tchen — former chief of staff to first lady Michelle Obama — to contact Foxx? From start to finish, which other persons directly or indirectly sought to shape the decisions of prosecutors, or of others in law enforcement?
True or false: Democratic politics — prominent figures or future career aspirations — drove whatever really happened here. In sum, did people whose names we haven’t yet heard exploit their personal connections to persuade prosecutors?
The mystery of the 18 days
Foxx’s office extracted 16 felony charges against Smollett from a grand jury on March 8, 2019, then inexplicably dropped the case on March 26. First Assistant State’s Attorney Joseph Magats denied that doing so reflected weak evidence or a desire for secrecy. “It’s a mistake and it’s wrong to read into the decision that there was something wrong or that we learned something about the case that we didn’t already know,” Magats told the Tribune. And on March 27, Foxx told the Sun-Times her office
“had a strong case … that would have convinced a trier of fact” that Smollett had lied about staging a hate crime. Yet two days later, on March 29, Foxx wrote to the Tribune that aspects of the evidence and testimony would have made the trial outcome “uncertain.”
Mr. Webb, what forces provoked all these switchbacks? What intervening variables provoked Foxx’s office to first seek, then quickly abandon, the 16 felony counts last year?
The secretive dropping of charges
Who inside or outside Foxx’s office engineered the decision to drop the charges — and then seal official records — during an unannounced court session? To whatever extent the state’s attorney’s office was complicit in this furtiveness, why so? Was the clandestine effort part of what critics have termed a prosecutor protection program?
A companion point: Was whoever made the decision to pursue felony counts before a grand jury the same person who later made the decision to drop all charges?
Which other defendants ‘get similar arrangements’?
On March 27, 2019, Foxx told WBEZ: “But every single day on cases that law enforcement partners work diligently on, there are people who get similar arrangements, people who get diversion, people who get sentences that are probably not what some people would want. Every single day.”
Mr. Webb, how often do Cook County defendants facing 16 felony charges “get similar arrangements”?
What was Foxx’s role in this case?
At one point, Foxx had recused herself from the case due to conflicts of interest. Then Foxx was inconsistent, repeatedly, about her actions, her office’s decisions and why all charges got erased. In response to public records requests, Foxx’s office on April 16, 2019, made public thousands of internal texts and emails.
That trove establishes that instead of distancing herself from the case, Foxx had told her first assistant that the number of felony counts facing Smollett was excessive. Referring to her office’s pending indictment of R&B singer R. Kelly, Foxx wrote: “Pedophile with 4 victims 10 counts. Washed up celeb who lied to cops, 16 (counts). Just because we can charge something doesn’t mean we should.” How is it that Foxx removed herself from the case yet scolded her top assistant for how he handled it? None of this makes sense. What’s the real story?
Why did prosecutors let Smollett avoid responsibility?
Why would Foxx’s office say the dropping of charges didn’t exonerate Smollett, yet permit him to walk without accepting responsibility for his alleged staging of a hate crime?
Mr. Webb, can you find another case in which Foxx’s office dropped the prosecution of a defendant who allegedly filed a false police report without his or her admission of guilt?
Mr. Webb, the reality at the heart of this case is that prosecutors wield tremendous influence over which defendants our criminal justice system will pursue, and which defendants walk free.
The people of Chicago and Cook County want a justice system that gives every defendant equal treatment. And as taxpayers who cover the high costs of that system, they deserve answers to every one of these questions.
Anytime you’re ready, Mr. Webb.