CHICAGO (CBS) — Cook County State’s Attorney Kim Foxx denied that her office fixed the Jussie Smollett case by agreeing to drop charges, insisting prosecutors handled the disorderly conduct charges the same way they do in thousands of other low-level felony cases.
“This case was treated like the other cases that have gone through our alternative prosecution model. He was given the same opportunity that thousands of others with the same level of offense, and the same criminal background, have had. The same opportunity,” Foxx said.
Prosecutors dropped 16 counts of disorderly conduct against Smollett on Tuesday, and he forfeited the $10,000 bail he had posted after his arrest. He also had performed 16 hours of community service with the Rainbow PUSH Coalition.
According to Foxx, during her tenure since taking office in December 2016, her office has disposed of 5,700 felony cases through alternative prosecution.
Foxx said it should not be a surprise that Smollett was able to get his charges dropped without admitting guilt, noting that disorderly conduct is a Class 4 felony in Illinois, the lowest level of felony charge.
“I believe that the outcome, him having to forfeit the $10,000, having to do community service, based on the allegations, and again the class 4 felony and no background, are an outcome that we could expect with this type of case,” she said.
However, when CBS 2 asked for specific examples of similar cases where all felony charges were dropped against a defendant, it took the prosecutor’s office an entire business day to produce just two cases that do not appear to be similar to the Smollett case.
Interestingly, CBS 2 obtained an internal email from the state’s attorney’s office, asking staffers to find comparable felony cases in which they dropped charges under similar conditions.
Mayor Rahm Emanuel has called the decision to drop the charges against Smollett “a whitewash of justice,” and Police Supt. Eddie Johnson has said he doesn’t believe justice was served.
“If you want to say you’re innocent of a situation, then you take your day in court. I would never, if someone falsely accused me, I would never hide behind a brokered deal in secrecy, period,” Johnson said Tuesday.
Foxx said dropping the case doesn’t diminish the hard work detectives did to investigate the case and bring charges against Smollett.
“We are grateful for the work that they have done on this case, but this outcome is not an outlier to similarly situated cases. And I think it’s really important that we have that understanding, because this was an outcome that was not unexpected,” she said. “I think the way that it happened so quickly, people were taken aback by; but if we look at other disorderly conduct cases, and we look at how those cases were handled by our office, this outcome was not unexpected.”
Foxx also said she has talked to both Emanuel and Johnson since the charges were dropped. She said they basically agreed to disagree about the decision.
Foxx recused herself from the case a week before Smollett was charged, while police still officially considered him a victim of a hate crime. According to published reports, Foxx tried to persuade Chicago Police Supt. Eddie Johnson to hand over the investigation to the FBI, after a supporter of Smollett reached out to her.
Tina Tchen, former chief of staff to former first lady Michelle Obama, reportedly emailed Foxx saying Smollett’s family was concerned about the police investigation. She also later reportedly texted with a relative of Smollett’s and told them she convinced Johnson to reach out to the FBI.
Foxx said, at the time of those exchanges, Smollett was still considered a victim in the case. She said she recused herself from the case before Smollett was charged, and had no further contact with Smollett, his family, or anyone representing him after his arrest.
“At the time that I spoke to the family member, the superintendent knew that I had spoken to the family member. I had shared with him the conversations that we had, and the concerns that they had, and it was the same day that the superintendent went on television and affirmed that Jussie Smollett, at the time, was a victim, and had no reason at that time to suggest otherwise.”
Foxx denied that Tchen or the Obamas tried to convince her to drop the case.
“There was no attempt, whatsoever, to influence the outcome of this case. None whatsoever,” she said.
In a statement, Tchen stated her only contact with Foxx was to put her in touch with Smollett’s family.
“I know members of the Smollett family based on prior work together. Shortly after Mr. Smollett reported he was attacked, as a family friend, I contacted Cook County State’s Attorney Kim Foxx, who I also know from prior work together. My sole activity was to put the chief prosecutor in the case in touch with an alleged victim’s family who had concerns about how the investigation was being characterized in public,” Tchen stated.
First Assistant Cook County State’s Attorney Joseph Magats oversaw the Smollett case after Foxx recused herself, and was the one who decided to drop the charges against the actor. Magats and Foxx both insisted prosecutors would not have dropped charges if Smollett had not agreed to forfeit his $10,000 bail and to perform community service.
Asked if she believes Smollett is innocent of the charges that have since been dropped, Foxx said, “I think that the charges that were filed, and again I was recused at the time of the charges, were appropriate.
“I believe that the outcome, him having to forfeit the $10,000, having to do community service, based on the allegations, and again the class 4 felony and no background, are an outcome that we could expect with this type of case,” she added.
Foxx also said, had prosecutors gone forward with the case, the maximum fine Smollett would have faced would have been $10,000, the same amount he forfeited when prosecutors dropped the charges.
“The statute says that the maximum that we’re allowed to get for restitution is $10,000. So if we’re using the justice system as available in Cook County, $10,000 is the max,” she said.