April 24, 2019
FOXX'S SMOLLETT FIASCO JEOPARDIZES 2020 RE-ELECTION HOPES
ANALYSIS & OPINION BY RUSS STEWART
A chief prosecutor's worst nightmare, as Cook County State's Attorney Kim Foxx is discovering to her ongoing horror, is for his/her office to mis-prosecute or not prosecute at all - and then have to explain it.
It is not unusual to over-prosecute, which means piling on more charges (or counts in an indictment) to encourage a plea bargain and get a conviction, or to under-prosecute, which means there is some legal or evidentiary flaw and the case will later be tossed with fines and fees, creating a nuisance deterrent for the perpetrator.
The underlying fear is that the innocent might be imprisoned or that the guilty might walk and then commit the crime again - both of which redound to the prosecutor's and/or judge's future detriment. Foxx's problem in the "Empire" actor Jussie Smollett's case is that her office initially over-prosecuted the alleged hate-crime hoax perpetrator, having the grand jury issue 16 counts of felony disorderly conduct, and then under-prosecuted by non-prosecuting and then clandestinely nolle prossing the case without getting an admission or apology from Smollett.
"There's a lot more evidence" that proved Smollett was not a victim, said Chicago Police Department superintendent Eddie Johnson on Feb. 25. Yet on March 26, pursuant to a defense motion to advance and prior to any arraignment in which a plea of guilty or not guilty must be submitted, all 16 charges were dismissed by Foxx's office, but Smollett's $10,000 bond deposit was forfeited and he was given credit for 16 hours of community service at Operation PUSH, meaning one hour for each count. But Smollett's attorney said there was no plea deal, no plea, no apology and no fine. So what's going on?
The case file has been sealed, so nobody knows. What we do know is that Foxx has gone into serious damage-control mode, and is using the just-begun investigation by the county Office of Independent Inspector General (OIIG) as a pretext to offer no explanations until and unless OIIG ascertains what happened, when it happened, why it happened and who is responsible. Which begs the question: Who's in charge over there?
The Smollett fiasco is a textbook example of professional incompetence, political calculation and, soon to come, lame excuses and scapegoating. I expect the ax to fall on Joseph Magats, the first assistant state's attorney to whom the Smollett case was assigned for prosecution.
The case timeline leaves little wiggle-room for factual re-invention. The operative word is res ipsa loquitur, a Latin phrase for the legal doctrine that an event or an act "speaks for itself," and that the court can infer liability and/or negligence from the very nature of an act regardless of how a person acted or intended to act. That is Foxx's predicament.
On Jan. 29 Smollett was the alleged victim of a hate crime, which a police investigation rebutted, later determining that he allegedly did "orchestrate a staged assault" and allegedly did file a false police report. On Feb. 20, Foxx's felony review approved the charges, and on Feb. 21, Smollett appeared in bond court and a "probable cause" finding was made, bond was set at $100,000, and the case continued for arraignment.
The case, as normal, went to a grand jury that heard testimony from the two men whom Smollett allegedly paid to stage the hoax, and then upped the charges on Feb. 28 to 16 disorderly counts, a Class 4 felony carrying a 1 to 3-year sentence, $10,000 fine and probation.
Prior to all of that, Foxx on Feb. 13 recused herself, due, she said, to "her familiarity with potential witnesses in the case." Like who? Tina Tchen, Michele Obama's chief-of-staff, e-mailed her to have the FBI, not CPD investigate. And did she recuse herself or the entire office? An office spokesperson than added that an "abundance of caution" and need for "impartiality" prompted the action. Under state law, such a recusal requires a judge to appoint a special prosecutor.
On Feb. 28, after her recusal, Foxx reportedly texted Magats about "over-charging" in the Smollett case, cautioning that singer R. Kelly was hit with 10 counts of sexual assault of a minor while Smollett was a "washed up celeb, who only lied to the cops" and received 16 counts. When this was later disclosed, an office spokesperson told online Patch Media that the recusal was only in the "colloquial, not the legal sense." So did Foxx retain authority or did she not?
You know the rest of the story. On March 26 the case was dismissed. Foxx surely had to know about that. A nolle pros means that there can be no reinstatement unless new evidence is found. The reaction was swift. Some members of the Federation of Police demanded that she resign, Mayor Rahm Emanuel called it a "whitewash of justice," and Foxx was accused of being more of a public defender than a criminal prosecutor. The city demanded $130,000 in reimbursement for police investigative expenses, which will never occur.
Foxx's initial defensive response was that filing the nolle pros was part of her office's policy of non-prosecution of first-time non-violent offenders, like those possessing pot or being a bit rowdy. Is that Smollett? That should have been a proverbial "teachable moment," demonstrating that her policy is uniform and that Smollett is not an exception. But then she changed her narrative, declaring that there were possible problems with the evidence, making a trial outcome "uncertain." When did she make that determination? And wasn't she supposed to be recused on March 26?
Foxx goes into the March 2020 Democratic primary with the burden of proving that she has NOT been deceptive and has NOT been negligent in the Smollett case. The OIIG probe gives her time to get her story straight, but her professional credibility may be beyond repair.
Past state's attorneys have been in similar scrapes.
Anita Alvarez (2008-16) was chief deputy when elected in 2008, and pursued a pro-police, no plea deals, tougher sentencing policy and stuffing the County Jail. And Laquan McDonald was her undoing. McDonald was shot 16 times on Sept. 20, 2014, but police officer Jason Van Dyke was not charged with murder by the state's attorney until several months later, after Emanuel was re-elected in April 2015. The outrage was palpable. This was not mere negligence. It was intentional neglect for political reasons. Foxx, then Toni Preckwinkle's chief-of-staff, swamped Alvarez in the 2016 primary 645,738-317,594, getting 58.3 percent, with 144,063 for Donna More.
Republican Jack O'Malley (1990-96) was a fresh face in 1990 and won re-election in 1992, but then got embroiled in prosecuting Congressman Mel Reynolds on sexual assault charges. His African-American support collapsed and Dick Devine (1996-2008) won. Cecil Partee, the African-American city treasurer, was appointed after Rich Daley (1980-89) was elected mayor. When the media reported he was a deadbeat on child support, property taxes and housing fines, O'Malley beat him. Daley was just treading time after he won the iconic 1980 primary over Ed Burke, who was backed by Mayor Jane Byrne. He was just waiting for his chance to run for mayor, losing in the equally iconic 1983 Washington-Byrne-Daley primary, but then triumphing in 1989.
Ed Hanrahan (1968-72) made one egregious and politically fatal mistake. On Dec. 4, 1969, he dispatched some of the 14 Chicago police officers assigned to his office to conduct a raid for illegal weapons on the West Side apartment of Fred Hampton, the Black Panthers leader, and Mark Clark. Both were killed, a later investigation showed, in a hail of 82-99 bullets, with only one returned. Hanrahan was later indicted for obstruction of justice and conspiracy to present false evidence, but was acquitted. The 1972 verdict at the polls was unequivocal: Although dumped by the Daley Machine,
Hanrahan won the primary but then lost to Republican Bernard Carey (1972-80) in a huge wave of white liberal and black revulsion. Hanrahan was once on a track to be Chicago's mayor. That was over on Dec. 4, 1969.
Republican Ben Adamowski (1956-60) also thought he was on a mayoral track. He ran third in the titanic 1955 Daley-Kennelly-Adamowski mayor primary, switched parties and won in 1956, and set his sights on 1963. Daley had to beat him in 1960, and chose law professor Dan Ward (1960-66). The issue was Adamowski's use of office contingency funds, used to pay witness' expenses. Ward won narrowly, and Adamowski lost for mayor in 1963.
Only two names have surfaced for 2020 for state's attorney: More and 2019 mayoral loser Jerry Joyce, who got 40,099 votes in the Feb. 26 primary, or 7.2 percent. Joyce, from the Southwest Side 19th Ward, mailed heavily into white-majority wards, and has decent name recognition. Many more will surely follow, creating a crowded primary with no runoff. Just 30-35 percent can be enough to win.
Foxx will likely play the victim in all of this. If she loses, it will be because of her ineptitude as a prosecutor and not because of some racist conspiracy against her.
In 2016, she got 239,000 of her 415,627 Chicago votes in African-American wards and 99,000 of her 230,111 suburban votes in black townships, and 103,000 in white liberal wards and townships. The OIIG report will determine her fate.