Chicago, IL – Cook County State’s Attorney Kim Foxx said the resolution of “Empire” actor Jussie Smollett’s criminal court case was sealed by mistake.
All 16 felony disorderly conduct charges in relation to the hoax attack Smollett reported to Chicago police on Jan. 29 were dropped on Tuesday in exchange for the actor’s forfeiture of his $10,000 bond and 16 hours of community service.
The court reportedly sealed the case record, so the police department began releasing the investigatory reports to the media who had requested them under the Freedom of Information Act on Wednesday.
An hour after the files were released, the Chicago PD received a court order barring them from releasing any further files in the Smollett investigation, FOX News reported.
The Cook County Clerk's Office told ABC that the entire case had been cleared from their database, as if it had never existed.
Foxx said it was Smollett’s criminal record in relation to the police report that should have been kept under seal, TMZ reported.
She said her office was in the process of unsealing the resolution.
Foxx told WBEZ that the public just doesn’t understand how the legal system works.
She said that Smollett was treated like any other citizen and given no celebrity status in the disposition of his case.
“You know, I think that there is a lot of confusion,” Foxx explained. “For people who do this work every day, who recognize what the charges are — this is a Class 4 felony — for people who are in the weeds of this, we recognize that the likelihood that someone would get a prison sentence for a Class 4 felony is slim.”
She told WBEZ that people are having trouble processing “the intricacies of the justice system” and “don't understand alternative prosecution or diversion or alternate outcomes outside of prison or lengthy probation.”
Foxx insisted that Smollett’s charges were disposed of like any other similar case would be.
“If you took the celebrity out of this and looked at Class 4 felonies, or if you were able to isolate out what happens with other disorderly conduct cases when the defendant is not a celebrity, and to see if this is out of line, and I think that gives greater clarity,” she told WBEZ.
But an internal memo leaked from the Cook County State’s Attorney’s Office undermined the credibility of Foxx’s assertions.
Even as the prosecutor’s office claimed there was nothing unusual about deferred action in a case like Smollett’s, WLS reported that staff in the state’s attorney’s office was scrambling to find similar examples to use in their own defense.
“We are looking for examples of cases, felony preferable, where we, in exercising our discretion, have entered into verbal agreements with defense attorneys to dismiss charges against an offender if certain conditions were met, such as the payment of restitution, completion of community service, completion of class, etc., but the defendant was not placed in a formal diversion program,” read a memo that was circulated in the Cook County State’s Attorney’s Office on Wednesday, according to WLS.
“Please ask your [assistant state’s attorneys] if they have examples of these types of dispositions and we will work with them further to figure out on what case it was done,” the memo continued. “Nobody is in trouble, we are just looking for further examples of how we, as prosecutors, use our discretion in a way that restores the victim, but causes minimal harm to the defendant in the long term.”
Foxx was already facing scrutiny for her early involvement in the Smollett case.
The state’s attorney’s office announced she was recusing herself on the day that the actor was arrested.
But now Foxx is under heavy fire for her decision to let Smollett get off pretty much scot free after her office announced that she had not officially recused herself from the Smollett case but had only done so “colloquially,” the New York Post reported.
The conflict of interest arose after Chicago attorney Tina Tchen, former chief of staff to Michelle Obama, reached out to Foxx to intervene on Smollett’s behalf early in the investigation, FOX News
Just a few days after Smollett reported the staged attack on him to police, Tchen contacted Foxx on behalf of the actor and his family, the Chicago Sun-Times reported.
“I wanted to give you a call on behalf of Jussie Smollett and family who I know. They have concerns about the investigation,” Tchen texted to Foxx on Feb. 1.
Text message records showed that Tchen had given Foxx’s phone number to a family member of Smollett, and that person also texted the state’s attorney, according to the Chicago Sun-Times.
Foxx said the family had no concern about the quality of the investigation by the Chicago police, but felt there would be fewer leaks if the investigation was turned over to the Federal Bureau of Investigation (FBI).
The state’s attorney agreed to ask Chicago Police Superintendent Eddie Johnson to refer the investigation to the FBI and texted both Tchen and the family member back to confirm that she had, the Chicago Sun-Times reported.
“Spoke to the superintendent earlier. He is going to make the ask. Trying to figure out logistics. I’ll keep you posted,” Foxx texted the relative that evening.
“OMG this would be a huge victory,” the relative replied.
“Spoke to the Superintendent Johnson,” Foxx texted Tchen the same day. “I convinced him to reach out to FBI to ask that they take over the investigation. He is reaching out now and will get to me shortly.”
Chicago Police Spokesman Anthony Guglielmi said the FBI had been involved in the investigation of an alleged hate crime against Smollett from the beginning, but that Superintendent Johnson had never even considered handing over the case to the feds, FOX News reported.
Despite Foxx’s earlier assertion that she had taken herself out of the mix, a spokesman for the state’s attorney’s office clarified that she had not done so formally.
Cook County State's Attorney Spokeswoman Kiera Ellis told the Chicago Patch in a written statement that Foxx "did not formally recuse herself or the [State's Attorney] Office based on any actual conflict of interest. As a result, she did not have to seek the appointment of a special prosecutor."
Ellis said that Foxx’s public announcement of her recusal “was a colloquial use of the term rather than in its legal sense," the Chicago Patch reported.
"Instead, in an abundance of caution, [Foxx] informally separated herself from the decision-making over the case and left it to her Assistants, as happens in 99.9% of all cases handled by the Office,” Ellis explained.