For a University of Illinois law professor and local attorneys who have decades of experience in criminal court, the dismissal of charges against actor Jussie Smollett leaves a lot of unanswered questions.
“This is a puzzle,” said Andrew Leipold, who teaches criminal law and criminal procedure at University of Illinois College of Law. “It’s not at all clear to me what led the prosecutors to drop the charges. I’m not saying they shouldn’t have, I’m just saying it’s not clear why they did.”
He added, “Nothing about this feels normal to me. I think, obviously, that stuff is going on here that we don’t know about. It’s hard to connect all these dots in a way that makes sense.”
Cook County State’s Attorney Kim Foxx’s office on Tuesday dismissed charges that accused Smollett of cooking up a racist and homophobic attack against himself. Smollett reported to police that, on Jan. 29, he was attacked on a Chicago street by two men who yelled racist and gay slurs, beat him, poured a chemical on him, put a rope around his neck and shouted, “This is MAGA country.”
Foxx on Wednesday said her office had sufficient evidence for a conviction, but dismissed the charges as part of an agreement that required Smollett to forfeit the $10,000 that he posted for bond and perform two days of community service at Rainbow Push Coalition. Foxx said the dismissal was not an exoneration of Smollett, but rather a typical resolution for a defendant in a low-level felony case with no prior criminal history.
Yet Smollett and his attorneys called the dismissal an exoneration. Smollett told reporters Tuesday, “I’ve been truthful and consistent on every single level since Day 1.” And he thanked prosecutors for "attempting to do what's right."
Leipold said it’s strange that Smollett would be willing to forfeit $10,000 if he has not committed any crimes. “If he’s been telling the truth all the way through, why wouldn’t he want his bond back?” Leipold said.
Prosecutors and attorneys for Smollett seem to be careful about using the terms "agreement" and "plea agreement." Prosecutors said the dismissal was part of an agreement, yet Smollett’s lawyers said there was no "plea agreement" – that it was a straight-up dropping of the charges, fully clearing Smollett.
“It doesn’t sound like anyone is giving the complete story here,” Leipold said.
After the dismissal of the charges, Smollett’s attorneys asked the judge to seal the case file and expunge Smollett’s record. Prosecutors did not object, and the request was granted.
Don Weber, a longtime Madison County prosecutor and former judge, said it’s “preposterous” that the immediate expungement and sealing of the records happened.
“The only way you get that is if the prosecutor comes in and just gives up,” Weber said.
Leipold said it appears the prosecution and defense had an understanding that prosecutors wouldn't challenge the request for the expungement and sealing. Either that, he said, or prosecutors "got caught flat-footed."
Weber said prosecutors should not have settled for a disposition that did not involve some type of conviction, or at least an admission of wrongdoing.
“The guy was clearly guilty of filing a false police report,” Weber said. “He should have at the last been forced to admit that what he did was wrong -- at the very least – even if the charges are dismissed. It is fundamental in cases like this that the very minimal the prosecutor should demand is an admission that you did it.”
Otherwise, he said, the message is that it’s OK to make false reports of crimes.
Foxx's office on Wednesday explained that the charges were not simply "dropped," but that they were dismissed in exchange for Smollett forfeiting the bond and performing the public service. Foxx's office said it was an example of her office's "alternative prosecution" program. Under such programs, defendants can get their charges dismissed if they fulfill some type of obligation, such as drug treatment or performing community service.
Weber said Smollett deserves stiffer punishment.
“This is not an example of the criminal justice system working,” Weber said. “This is the Obama system of exonerating criminals.”
Brian Trentman, a former prosecutor and public defender who also has worked at prominent criminal defense firms in Belleville, said it’s “extremely unusual” that an expungement and sealing would be granted immediately upon dismissal of charges.
“And it is even more unusual that the prosecution would agree to it,” Trentman said. “Because now the public will never be able to find out what was actually going on.”
James Hackett, a former Madison County judge who handled mostly felony cases, said he finds it odd that Foxx recused herself from the case, yet her office continued to handle the prosecution. Foxx announced in February that she was recusing herself because she had contact, during the investigation, with an associate of Smollett. Joseph Magats, an assistant state’s attorney who works for Foxx’s office, handled the prosecution. He has said the dismissal of charges was his decision, not Foxx’s.
“If the head prosecutor has a conflict, normally, that’s going to mean the whole office should be set apart from the prosecution, just so you don’t end up with questions like this: How much influence was there? Who contacted whom?” Hackett said.
Foxx’s office, in a statement Wednesday, said her recusal in the case was an informal recusal, not a formal, legal recusal that would have required her to seek the appointment of a special prosecutor from outside her office.
Hackett said a better, more cautious move for Foxx might have been to ask for a special prosecutor, but it’s “not absolutely necessary.” He added that if any mistakes were made in that regard, it probably wouldn’t be enough to undo the dismissal. “It would take more than what is apparent right now,” Hackett said.
Calvin B. Fuller, a former Madison County felony prosecutor who is now a defense attorney, said the quick resolution of the case is unusual. Smollett was charged on Feb. 20, then a grand jury issued a formal indictment on March 7, then the charges were dismissed Tuesday.
“Obviously the state’s attorney’s office felt there was enough evidence to proceed, and then the grand jury felt there was probable cause to proceed,” Fuller said. “What happened during the interim period is beyond me.”
He added, “It would be unusual for a grand jury to be convened, and that amount of money to be spent in the investigation of the case, and then to dismiss it so quickly.”
It’s possible, Fuller said, that something went wrong with the prosecution’s case.
“Sometimes what you know and what you can prove are two different things,” he said.
Leipold, the U of I professor, also noted how quickly the case was resolved.
"It didn't really get very far in the process. Usually, with the indictment, we're just getting started," Leipold said. "In this case, all of the sudden, this one's done. Charges dropped, no plea, no sentencing, just an understanding, apparently, that he wouldn’t ask for his bail money back, which is curious, and some indication that he’s done some community service for two days."
Madison County State’s Attorney Tom Gibbons said he doesn’t know all the facts of the case. But Gibbons said if he had a solid case involving a false report of a crime, he’d want a conviction on the record for some type of offense, or at least some type of admission of guilt.
“When someone files a false police report, or makes up an attack, they undermine the foundation of our justice system by causing people to question the credibility of genuine victims, and they also waste a tremendous amount of pubic resources that need to be spent protecting the community,” Gibbons said.
Richard Saenz, a senior attorney for Lamda Legal, which is an advocacy group for lesbians and gay men and transgender people, said he’s not concerned that this single case might cast doubt on reports made by LGBT people who are victims of hate crimes.
“I don’t think it changes anything, but I think it raises questions that police departments should be asking themselves, like if an LGBT person comes in to report a crime, are we culturally competent to ensure that this person’s privacy and safety are going to be taken into account, and are we going to take their report seriously?” said Saenz, whose group has Midwest headquarters in Chicago.
Saenz said hate crimes against LGBT people are increasing, yet many of the victims are reluctant to make a report because they have a level of mistrust of police.
“You have to put it in the context of that,” Saenz said.
Saenz declined to offer a personal opinion on whether Smollett is a victim or a hoaxer.
But what is the conclusion that someone should draw from how the case played out? Saenz noted that it was a dismissal of charges, not a plea agreement.
“Based on the public information that we know, that he pleaded not guilty, and there was no trial and this was not a plea agreement – and even the prosecutors have not said that this was a plea agreement – so the words that I would look for is, was there was a plea agreement? And neither side has said there was,” Saenz said. “So to your question of whether he was guilty of something, that would have been on the prosecutor’s office to make that case, and that does not seem to have happened here.”
Saenz doesn’t see anything unusual in the way Smollett’s case was handled.
“Cases get resolved all the time,” he said.