CHICAGO (CBS)– Special Prosecutor Dan Webb has finished his investigation into the Cook County State’s Attorney’s handling of the Jussie Smollett case.
Webb found evidence that “establishes substantial abuses and discretions” in Kim Foxx’s prosecuting and resolving the case.
Special Prosecutor Dan Webb has finished investigation into Kim Foxx and her handling of the Jussie Smollett case.
Evidence was found “that establishes substantial abuses of discretion and operational failures.”
— Charlie De Mar (@CharlieDeMar) August 17, 2020
Smollett is accused of filing false police reports that he was the victim of a racist and homophobic physical attack on the way home from Subway in the middle of the night in Streeterville in January 2019.
In March 2019, Cook County prosecutors dropped the original case against Smollett, dismissing 16 counts of disorderly conduct against him last March, without requiring he admit any wrongdoing, in a controversial move just weeks after he’d pleaded not guilty.
When charges were dropped, Smollett 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 the 60-page document released Monday, “as a result of this investigation, the OSP (Office of the Special Prosecutor) did develop evidence that establishes substantial abuses of discretion and operational failures by the CCSAO in prosecuting and resolving the Initial Smollett Case.”
The summary of the report raises the possibility of ethical violations by Foxx and other state prosecutors.
“Almost across the board, lawyers who currently work in or previously worked in the CCSAO’s criminal division who were interviewed by the OSP—including State’s Attorney Foxx—were ‘surprised’ or ‘shocked’ by at least some facet of the dismissal terms,” the reported stated.
As CBS 2’s Charlie De Mar reported Monday afternoon, Webb’s report said it started with Foxx’s decision to recuse herself from the case and appoint her number two, First Assistant State’s Attorney Joe Magats.
Web found that to be a “major legal defect” that Foxx and her office ignored because they did not want to “admit that they had made such a major mistake of judgment,” only to “compound the problem” by “making false statements to the media.”
When the charges against Smollett were dropped, Foxx said the case was “treated like the other cases that have gone through our alternative prosecution model.”
She said, “The Class 4 felony and no background are a background that we can expect from this type of case.”
Webb’s report said that statement was “determined to be untrue.” Smollett does have a criminal history in California and his case was not handled in the same way as others like it, according to the report.
A list of nearly 6,000 cases that Foxx’s office used to prove that Smollett was treated no differently was itself another abuse of discretion, Webb determined.
“There were not thousands of (or, arguably any) similar cases that the CCSAO resolved in a similar way to the Initial Smollett Case,” the report said.
Foxx was not influenced or swayed by any outside people, said the report, but Foxx did exchange calls and texts with Smollett’s sister, Jurnee Smollett, five days after learning Jussie Smollett was a suspect.
“Foxx then made false statements to the media claiming she ceased all communications with Ms. Smollett,” the report said.
In addition, the report states “the CCSAO did not consult with the CPD about the terms of the resolution and intentionally chose not to alert the CPD that the case would be dismissed until minutes before the hearing, despite all of the diligent and hard work the CPD put into investigating the case…”
Webb’s report also said this statement by Foxx was not true: “The state statute max we are allowed to get for restitution is $10,000.”
Foxx responded to the Special Prosecutor’s report Monday:
“This report puts to rest any implications of outside influence or criminal activity on the part of the Cook County State’s Attorney’s Office (CCSAO) and the Chicago Police Department (CPD). As the report unequivocally confirms, State’s Attorney Foxx was not involved in the decision-making process regarding the Jussie Smollett case at any point and there was no outside influence on that process.
“The CCSAO categorically rejects the OSP’s characterizations of its exercises of prosecutorial discretion and private or public statements as “abuses of discretion” or false statements to the public. While the release does not say so, any implication that statements made by the CCSAO were deliberately inaccurate is untrue. As a result of the issues addressed in the press release, and of discussions of them beforehand, the CCSAO has already made a number of changes to its operations, including the hiring of a new CCSAO ethics officer and more separation of their function from the administration of the office, and strengthening the recusal plan with clear guidelines and explicit definitions of conflicts of interest.”
State's Attorney Foxx responds to the Special Prosecutor report https://t.co/6CShvc2rkL
— Charlie De Mar (@CharlieDeMar) August 17, 2020
Smollett’s attorney, Mark Geragos, called Webb’s report a politically-motivated attack on Smollett.
“This so called ‘report’ on Kim Foxx and the timing of the recharging of Jussie reveals the real political electoral motivation of Dan Webb and his cohorts. It’s a blatant attempt to take down a black, progressive, female prosecutor who does not fit within the white power structure. Jussie, a black, gay man who maintains his innocence, continues to be used as a pawn. Today’s report confirms what the defense has said all along—there was no wrongdoing or undue influence by Jussie or the defense in the dismissal of all charges against him and the second wave of charges is a blatant constitutional violation.”
Abel and Ola Osundairo — the star witnesses in the Smollett investigation — released a statement regarding Webb’s findings Monday. Chicago Police said the brothers were paid $3,500 by Smollett to stage an attack against him.
“Ola and Abel Osundairo are aware of the Special Prosecutor’s report and are grateful for the hard work performed by Mr. Webb’s team in accomplishing the directives set forth by Judge Toomin. The Osundairo Brothers had no knowledge of the behind-the-scenes communications between the Cook County State’s Attorney’s Office and Mr. Smollett’s defense counsel and were just as surprised as the public when the charges were dismissed on March 26, 2019.
“Ola and Abel fully support Judge Toomin releasing the full investigative report and the Grand Jury materials.”
Meanwhile late Monday, the CBS 2 Investigators received a letter to Cook County Judge Michael Toomin from County Commissioner Sean Morrison (R-17th). Morrison said in the interest of justice, residents deserve to see Webb’s full report into Foxx’s handling or mishandling of the Smollett case rather than just the snapshot released on Monday – and soon.
In February, Smollett was indicted on six new charges of disorderly conduct in connection with the police reports authorities say are false.
A special Cook County grand jury handed down the new indictment following a six-month investigation by special prosecutor Webb.
Smollett’s case is still pending. Hearings have been delayed several times because of COVID-19.