Kim Foxx condemned for ‘highly unusual’ handling of Smollett case

March 29, 2019

Cook County State’s Attorney Kim Foxx insists her office went by the book in dropping all charges Tuesday against “Empire” co-star Jussie Smollett, but other Illinois prosecutors could not disagree more.

Lee Roupas, president of the Illinois Prosecutors Bar Association, which represents nearly 1,000 prosecuting attorneys, condemned her office’s actions in throwing out the 16 felony charges as “abnormal,” “highly unusual,” and an “affront” to the public, police and prosecutors.

“Through the repeated misleading and deceptive statements to the public on Illinois law and circumstances surrounding the Smollett dismissal, the State’s Attorney has failed in her most fundamental ethical obligations to the public,” said Mr. Roupas in a Thursday statement. “The IPBA condemns these actions.”

In addition, Mr. Roupas, DuPage County assistant state’s attorney, said the “manner in which this case was dismissed was abnormal and unfamiliar to those who practice law in criminal courthouses across the State.”

In interviews Wednesday, Ms. Foxx said the process of dropping the charges as part of its alternative prosecution program was “not a new or unusual practice,” arguing the approach had been used in 5,700 previous cases and was “available to everyone” in similar situations.

Not so, said Mr. Roupas, who called it “highly unusual, not a statutory diversion program, and not in accordance with well-accepted practices of State’s Attorney initiated diversionary programs.”

“Prosecutors, defense attorneys, and judges alike do not recognize the arrangement Mr. Smollett received,” he said. “Even more problematic, the State’s Attorney and her representatives have fundamentally misled the public on the law and circumstances surrounding the dismissal.”

Illinois prosecutor’s group unleashes furious condemnation of Smollett case resolution. Calls @SAKimFoxx performance “abnormal and unfamiliar to those who practice law in criminal courthouses across the State.“That was the nice part.READ IT: https://t.co/m0JiEME38g pic.twitter.com/uqoAhj0PAZ CWBChicago (@CWBChicago) March 29, 2019

A day earlier, the National District Attorneys Association criticized Ms. Foxx and her office on several fronts, arguing for one that Mr. Smollett should have been required to issue “an acknowledgement of culpability.”

“A case with the consequential effects of Mr. Smollett’s should not be resolved without a finding of guilt or innocence,” said the NDAA in a Wednesday statement.

The association also faulted her for her intervention with Chicago police on behalf of a Smollett family member, who reached out through former First Lady Michelle Obama’s onetime aide Tina Tchen, as revealed in Feb. 1 emails and texts obtained by the Chicago Sun-Times.

″[P]rosecutors should not take advice from politically connected friends of the accused,” said the NDAA. “Each case should be approached with the goal of justice for victims while protecting the rights of the defendant.”

Ms. Foxx has said that she reached out to Chicago police superintendent Eddie Johnson, asking him to turn the case over to the FBI, when Mr. Smollett was still viewed as a victim of a hate crime and not a suspect.

Mr. Smollett was accused of perpetrating a hoax after reporting that on a freezing Jan. 29 night in Chicago, two men in ski masks beat him, put a rope around his neck and called him homophobic and racial slurs. He has denied staging the attack and maintained he was a victim.

The Illinois prosecutors’ group also took issue with the Cook County prosecutor’s’ decision to seal the court record at Tuesday’s hearing.

“The sealing of a court case immediately following a hearing where there was no reasonable notice or opportunity for the public to attend is a matter of grave public concern and undermines the very foundation of our public court system,” said Mr. Roupas.

Another bone of contention lies with Ms. Foxx’s recusal. She has said she recused herself and turned the case over to her top assistant to avoid the appearance of impropriety, but her office said Thursday she only “informally separated herself from the decision-making over the case.”

“Although we used the term ‘recuse’ as it relates to State’s Attorney Foxx’s involvement in this matter, it was a colloquial use of the term rather than in its legal sense,” said the office in a statement to media outlets.

Mr. Roupas said that under Illinois law, her entire office should have been recused and a special prosecutor appointed to take over the case.

“Here, the State’s Attorney kept the case within her office and thus never actually recused herself as a matter of law,” he said.

President Trump tweeted Wednesday that the FBI and Justice Department would review the handling of the case, two weeks after the Fraternal Order of Police Chicago Lodge 7 called for a federal investigation and appointment of a special prosecutor.

“This is a textbook example of how a prosecutor should not handle a case,” former federal prosecutor Jon Sale told Fox News, adding, “Here, there is a perception that the rich and powerful get special treatment.”