Top Chicago prosecutor Kim Foxx continued to text Jussie Smollett’s sister for five days after he shifted from victim to suspect, special prosecutor Dan Webb said Monday.
In a news release on the conclusions from his investigation, Webb sharply criticized the handling of the Smollett case by Cook County State’s Attorney Foxx and her assistant prosecutors. He said their handling was marked by disarray and misleading statements – but concluded that they did nothing criminal.
In March last year, Foxx’s office surprised and angered many in Chicago by dropping charges that accused the former ‘Empire’ actor of staging a racist, homophobic attack against himself.
Webb was appointed in August to investigate why Foxx’s office had dropped the charges. He himself faced criticism and claims of another conflict of interest when it emerged he had donated $1,000 to Foxx’s re-election campaign once.
Monday’s release does not show or attempt to explain how prosecutors came to reach the deal to drop the actor’s first case. Foxx’s team are said to have given ‘significantly and meaningfully divergent explanations for how the resolution was reached’.
The special prosecutor also said Foxx’s office ‘seemingly…did not want to admit they had made such a major mistake of judgment’ in her botched recusal from the case.
Smollett is still adamant that the attack was real and was not a publicity hoax. Webb’s full 60 page report is not yet public.
Webb’s statement said his investigation ‘did not develop evidence that would support any criminal charges against State´s Attorney Foxx or any individual working at (her office)’.
But it added, it ‘did develop evidence that establishes substantial abuses of discretion and operational failures’ in how it handled the Smollett matter.
A brief statement released by Foxx’s office later Monday said it welcomed aspects of Webb’s findings, including that no one on the staff committed a crime and that no undue outside influences affected the prosecutors’ decisions regarding Smollett.
But it took issue with the broader depiction of an office that didn’t follow proper procedures and that was quick to mislead, saying it “categorically rejects … characterizations of its exercises of prosecutorial discretion and private or public statements as ‘abuses of discretion’ or false statements to the public.”
Smollett had been hit with a 16-count grand jury indictment and faced more than 50 years behind bars — until State’s Attorney Kim Foxx suddenly dropped all the charges last March in exchange for him doing community service.
It was a decision that blindsided and outraged Chicago’s former mayor Rahm Emanuel and former Chief of Police Eddie Johnson.
Webb’s findings announced Monday came after charges were restored against Smollett by the same special prosecutor in February this year.
Webb said at the time that dropping the charges against Smollett were unjustified, including because the evidence against Smollett seem and because he was not required to admit that the attack was a hoax.
One of the focuses of Webb´s inquiry was about whether Foxx acted improperly by speaking to a Smollett relative and Tina Tchen, a onetime aide of former first lady Michelle Obama before the charges were dropped, or by weighing in on the case after recusing herself.
The release Monday found no evidence to support the suggestion Smollett was offered a sweetheart deal following pressure from influential people.
But it did state: ‘State’s Attorney Foxx learned by February 8, 2019 that Mr. Smollett had become a suspect in CPD’s investigation, yet she continued communicating with Ms. Smollett through February 13, 2019, including via five text messages and three phone calls.
‘State’s Attorney Foxx then made false statements to the media claiming she ceased all communications with Ms. Smollett as soon as she learned that Mr. Smollett was a suspect in CPD’s investigation and no longer merely a victim.’
It also counters Foxx’s argument that dropping the charges followed a precedent set by other cases, adding: ‘There were not thousands of (or, arguably any) similar cases that the CCSAO resolved in a similar way.’
Webb also said Foxx was wrong when she said Smollett had no criminal background; in 2007 he was convicted of misdemeanor DUI, making false statements to police and driving without a license in California.
Webb said Foxx and a top assistant prosecutor made at least six false or misleading statements regarding the dismissal of the case in possible violation of rules for professional conduct. He said a summary of his findings would be forwarded to the Illinois Attorney Registration & Disciplinary Commission, saying only it can decide it the alleged false statements amounted to serious ethical violations.
Despite alleging that Foxx misled the public about the communications, Webb said his investigation found no evidence Foxx’s conversations with Jurnee Smollett or others outside the prosecutor’s office influenced the decision to drop the charges.
Webb also criticized Foxx’s office for trying to keep the decision to drop the charges from public for as long as possible. And he said the office didn’t even give the Chicago Police Department a heads up about the decision until minutes before a court hearing formalizing the dismissal.
Foxx is the first black woman to hold Chicago´s top law enforcement job.
She defeated her primary opponents earlier this year even as they made her handling of the Smollett case central to their campaigns. In overwhelmingly Democratic Chicago, the primary invariably determines who wins the general election.
Charging documents refiled by Webb in February accuse the black, openly gay actor of making a false police report in claiming two men attacked him early on January 29, 2019, in downtown Chicago, shouting slurs and looping a rope around his neck.
The Chicago Police Department had vowed to investigate the incident with all its might, and celebrities around the world rushed to share their support of Smollett.
He became a household name almost overnight.
But as the police investigation progressed, leaks began from within the police department that all may not have been as it seemed.
As the controversy grew, Smollett – determined to make his case – went on Good Morning America where he cried and insisted he was telling the truth.
By then, Chicago PD had released grainy surveillance camera footage of two men walking near the scene of the incident itself which was among the only part of his journey not captured on Chicago’s vast network of security cameras that night.
Smollett unequivocally identified the two men in the grainy footage as his attackers.
Neither their faces nor skin color could be made out in it.
Unbeknownst to him while he was conducting his GMA interview, the Chicago PD was building a case against him.
They had identified the people in the video as the Osundairo brothers and had backed-up their belief by tracking the pair’s movements in the days and hours both before and after the incident.
After hours of secret interviews, they told cops that Smollett had paid them to carry out the attack as part of an elaborate hoax.
Smollett was eventually arrested and charged with suspicion of lying to police.