Retired Judge O'Brien calls Kim Foxx a liar and says Foxx should resign!

Full 60-page report on Jussie Smollett case details confusion, controversy in state’s attorney’s office.

State’s Attorney Kim Foxx told Dan Webb’s investigators she herself was surprised by the deal made by her prosecutors to drop charges against the “Empire” actor.
By Andy Grimm@agrimm34 Updated Dec 20, 2021, 4:04pm CST


Special Prosecutor Dan Webb walks to the media pen after Judge Michael Toomin ordered the release of his report, which details how Kim Foxx and her staff handled the decision to drop charges against “Empire” actor Jussie Smollett, at the Cook County Juvenile Center in the Illinois Medical District, Monday morning, Dec. 16, 2021. The investigation was completed in August 2020 and Webb requested to unseal it now that Smollett was found guilty of five counts of disorderly conduct and acquitted on a sixth count. Pat Nabong/Sun-Times


Details surrounding the confusion and controversy that surrounding the abrupt dismissal of charges against Jussie Smollett extended even to Cook County State’s Attorney Kim Foxx and her top staff in the spring of 2019, Special Prosecutor Dan Webb’s full 60-page report on the matter reveals.

Foxx told Webb’s investigators she herself was surprised by the deal made by prosecutors, and that the “Empire” actor was not going to be required to admit guilt or do community service, and seemed not to know why the the actor was getting off so easily, according to the report, which Judge Michael Toomin ordered unsealed Monday.

The conclusions of Webb’s report were made public in August 2020, with the former federal prosecutor stating that there were multiple ethical lapses

by Foxx but no evidence of any illegality surrounding the office’s decision to drop charges against Smollett just weeks after he was indicted.

The report said Foxx had the impression “they wanted this guy [Mr. Smollett] out of town” to prevent the “flurry of activity” his presence brought to the courthouse and “being able to have the case resolved would eliminate throngs of people who were coming to court.”

“When asked by (the special prosecutor) if she agreed that trying to get Mr. Smollett out of town due to press attention might not be the right reason to come up with a disposition, she said that she agreed,” the report states. “She further explained, ‘I think the kind of negotiating, let’s get rid of that guy [Mr. Smollett] at the expense of really what his actions did to the City shortchanged, I think, the accountability that the City deserved.’”

Toomin, the veteran judge who in 2019 appointed Webb to probe the Smollett case, had charged Webb to investigate both the evidence against Smollett and the actions of Chicago police and the state’s attorney’s office.

The “Empire” actor, 39, was found guilty of five counts of disorderly conduct and acquitted on a sixth count following a jury trial earlier this month.

Webb’s report on the handling of Smollett’s case by Foxx’s office had been under seal since it was completed in August 2020, after Toomin ruled that making the full report public would compromise grand jury secrecy. Toomin reversed that decision Monday, stating that with Smollett’s trial over, the report could be made public.

“The need for disclosure, I think it can safely be said, is greater than the need for secrecy… at this time [the] trial has been concluded,” Toomin said during the brief hearing Monday.Flanked by family members, supporters, attorneys and bodyguards, former “Empire” star Jussie Smollett walks out of the Leighton Criminal Courthouse after he was found guilty on five counts of disorderly conduct but the jury acquitted him on one count, Thursday evening, Dec. 9, 2021. The 39-year-old actor and singer was charged with lying to Chicago police in 2019 when he claimed he was the victim of a racist and anti-gay attack near his Streeterville apartment. Ashlee Rezin/Sun-Times

Monday’s hearing marked the third time Webb sought to make public his full report on the state’s attorney’s office handling of the decision to dismiss a 16-count indictment charging Smollett with staging a hate crime attack outside his Streeterville apartment in 2019.

Webb’s report states that Foxx and her office committed “substantial abuses of discretion” in dismissing the charges against Smollett, and pointed to discord within the office even months after the controversial decision to drop the case.

Staff in Foxx’s office gave conflicting accounts of decision making around Smollett’s case, including key details of who negotiated his defense team to reach the unorthodox deal, or whether Smollett was offered the chance to enter a pre-trial diversion program that would have required him to complete a lengthy probation and complete community service in order to have charges dropped. Smollett’s case was dismissed with the actor making no admission of guilt, and gave him credit for some 15 hours of community service he had already done and for forfeiting the $10,000 he had posted for bond.

Foxx also made false statements to the public, including in a lengthy op-ed published by the Chicago Tribune, about the case and Smollett’s deal with prosecutors. Foxx said the case against Smollett appeared weak, though neither she nor her staff could point to any developments in the case that had undermined the evidence that was used to indict Smollett in the first place. Joseph Magats, Foxx’s former No. 2 in the office, and Risa Lanier, chief of the Criminal Prosecutions Bureau, both told Webb’s team the case was strong, though a footnote in the report states that the pair separately told a spokesperson for the office that there were problems with the evidence.

Foxx and her spokespeople also made repeated statements comparing Smollett’s treatment to nearly 6,000 low-level defendants who had entered “alternative prosecution” agreements with prosecutors, though the office was unable to find any comparable deals.

Retired judge Sheila O’Brien in 2019 petitioned to have a special prosecutor appointed to investigate Smollett’s deal, efforts that led to Webb’s appointment, and to Smollett being recharged and convicted.

Asked Monday if she felt the details in Webb’s report would restore confidence in the criminal justice system in Cook County, O’Brien was blunt.

“(The report) shows that Kim Foxx is a liar and her office is chaos,” O’Brien said. “She should resign.”

Toomin appointed Webb six months after Foxx’s office dropped Smollett’s case, charging the veteran attorney with two tasks: Review the evidence and decide whether Smollett should be charged again for lying to police about the attack and probe Foxx’s office for any misconduct related to the dismissal of the case. 

Dan Webb talks to reporters Monday after a Cook County judge ordered the release of Webb’s full report into his investigation of the procedural miscues and public misstatements about Jussie Smollett’s case made by State’s Attorney Kim Foxx and her top staff. Pat Nabong/Sun-Times

Months after announcing a new indictment against Smollett, Webb’s team completed its report. Toomin ruled the full findings would remain under seal.

The report released Monday shows that Foxx was getting regular updates on Smollett’s case even after she “recused” herself, even after her chief ethics officer overheard Foxx discussing the case with Magats, her top deputy, and warned her the conversation was improper. Ethics Officer April Perry also said she told Magats that terms of Smollett’s deal did not meet the requirements of the office’s Deferred Prosecution Program. Perry resigned a few weeks after Smollett’s deal went through.

Foxx and her staff also were aware that her decision to delegate decision making in the case to Magats by naming him the “acting State’s Attorney” in matters related to Smollett was not a legal “recusal.” If there were a conflict of interest, the entire office would have to be replaced by a court-appointed special prosecutor.

Webb also found that despite public statements that she communicated with Smollett’s relatives only while the actor was considered a victim of a crime, and not after he became a suspect himself, Foxx continued talking with Smollett’s sister, award-winning actress Jurnee Smollett.

Foxx was campaigning for a second term as state’s attorney when Webb first sought to release the report last year.

Foxx’s political mentor, Cook County Board President Toni Preckwinkle, meanwhile actively campaigned against Toomin, who was facing a retention vote to remain on the bench as chief judge of Cook County’s Juvenile Court. Preckwinkle said her push to get Toomin off the bench was based on his years-long refusal to adopt reforms to the juvenile court that were endorsed by child advocates, not as retribution for installing Webb to investigate Foxx.

Both Toomin and Foxx were reelected. Webb’s report states that while there was no criminal conduct by Foxx or her staff, her false statements to the public about the case could be ethical lapses that should be reported to the state Attorney Registration and Disciplinary Commission. The agency can mete out sanctions, including suspending or revoking an attorney’s license, though the proceedings are secret unless investigators move forward with a complaint. Asked Monday if he would send his report to the ARDC, Webb declined comment.

During some eight hours on the witness stand during his trial, Smollett maintained he was not involved in planning the attack, which Webb alleged was a publicity stunt the actor plotted because he was unhappy with the “Empire” studio.

Smollett faces up to three years in prison when he is sentenced, though he is considered a likely candidate for a probation-only sentence that would keep him from serving time behind bars. His sentencing will not take place until early next year.