CHICAGO (CBS) — About two weeks before charges were dropped against Jussie Smollett, Cook County State’s Attorney Kim Foxx texted her staff dismissing Smollett as a “washed up celeb who lied to cops” who was being charged too harshly.
CBS 2 has obtained hundreds of emails and texts regarding the investigation through a Freedom of Information Act request.
Foxx, who had recused herself from the case, believed the charges against Smollett were over the top. “Sooo……I’m recused, but when people accuse us of overcharging cases…16 counts on a class 4 becomes exhibit A,” she wrote.
She goes on to compare Smollett’s case with that of singer R. Kelly.
“Pedophile with 4 victims 10 counts. Washed up celeb who lied to cops, 16. On a case eligible for deferred prosecution I think it’s indicative of something we should be looking at generally. Just because we can charge something doesn’t mean we should.”
Smollett was charged and pleaded not guilty to 16 counts of disorderly conduct for allegedly lying to police about a hate crime, but Cook County prosecutors dropped the charges against Smollett after he agreed to forfeit his $10,000 bail and performed 16 hours of community service.
“After reviewing all of the facts and circumstances of the case, including Mr. Smollett’s volunteer service in the community and agreement to forfeit his bond to the City of Chicago, we believe this outcome is a just disposition and appropriate resolution to this case,” the Cook County State’s Attorney’s office stated in an email at the time.
Foxx said she recused herself from the case. First Assistant State’s Attorney Joseph Magats, a 28-year veteran prosecutor, had been the lead prosecutor. Foxx’s office later said it was not a formal recusal. Rather, Foxx separated herself from decision making out of an abundance of caution.
CBS 2 Legal Analyst Irv Miller said Foxx should have stayed away from the case altogether after recusing herself.
“She shouldn’t be even thinking about the case. She should have left it to the first assistant, because that’s what she wanted to do. That would have been the right way to do it. Obviously she was involved. Obviously, just by the number of these text messages, there was major concern going on after this thing went down,” he said.
Foxx released the following statement about why she was communicating with staffers about the case after recusing herself:
“After the indictment became public, I reached out to Joe to discuss reviewing office policies to assure consistencies in our charging and our use of appropriate charging authority. I was elected to bring criminal justice reform and that includes intentionality, consistency, and discretion. I will continue to uphold these guiding principles.”
Last week, Foxx asked Cook County Inspector General Patrick Blanchard to review her handling of the case. Miller said the text messages between Foxx and her staff will be part of that investigation.
“This has to be a part of it. If it’s going to be any type of valid investigation whatsoever, you have to find out what was going on behind the scenes. And that’s where the key is in this case. Who was really making the decisions? Why was the decision made?” he said.
Smollett was accused of falsifying a police report, and lying to police. Each of the 16 counts against him covers various alleged acts that Smollett falsely described to the officers–including that he was hit by two men, that they yelled racial and homophobic slurs and poured a chemical on him.
Smollett, who is black and openly gay, told police he was attacked as he was walking home around 2 a.m. on Jan. 29. He claimed two masked men – one of them also wearing a red hat – shouted racist and homophobic slurs as they beat him, put a noose around his neck, and poured a chemical on him.
Police said, in reality, Smollett had paid Ola and Abel Osundairo to stage the attack.
CBS 2’s Charlie De Mar has reported Smollett also directed the brothers to buy the noose at a hardware store and the hat and masks at a store in Uptown. Chicago Police Supt. Eddie Johnson said police have the check.
Police said the two brothers wore gloves during the staged attack, and did punch Smollett, but the scratches and bruises on Smollett’s face most likely were self-inflicted.
Police at the time said the attack was a publicity stunt because the actor was upset about his pay on the show.
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