CHICAGO – Staunchly defending her office’s handing of the Jussie Smollett case, Cook County State’s Attorney Kim Foxx said in an exclusive interview with the Tribune late Thursday that the 150-day jail sentence handed down by a judge could be questioned as “revenge” against the actor rather than justice.
While Foxx told the Tribune she was confident in Smollett’s guilt, she said her office was justified in dropping the initial charges and questioned whether the former “Empire” actor’s second prosecution was worth the yearslong effort to secure a conviction.
And Smollett’s sentence ended up being far harsher than most low-level felony penalties for defendants with nonviolent backgrounds, she said during an hourlong interview at an art gallery on Chicago’s South Side.
“Did we get vengeance today, or did we get justice?” Foxx said. “... Some people would be like, yeah, absolutely. He got what was coming to him. He lost his job. He can’t work. People made fun of him. He did that. Then there will be those who will say, is 150 days in Cook County Jail, probably in solitary confinement, and the probation – is the restitution fair? Sure. But that doesn’t feel like accountability to me. Feels like revenge.”
Foxx also addressed special prosecutor Dan Webb’s scathing report about her office’s handling of the case, which she said was misleading. Foxx said the questions he raised could have been answered if he had conducted follow-up interviews with her office.
Smollett was sentenced Thursday to 30 months of probation — the first 150 days of which he must serve in Cook County Jail. He must pay more than $120,000 in restitution to the city and a $25,000 fine.
The marathon hearing ended in dramatic fashion Thursday. Smollett, who had declined to speak earlier in the hearing, instead loudly declared his innocence after Judge James Linn announced the sentence. He was led into custody right afterward, raising a fist and shouting that he was not suicidal, and that any harm that might come to him inside Cook County Jail would not be of his own doing.
The atmosphere in criminal court is highly emotionally charged, Foxx said.
“It’s heavy all the time, and take the celebrity out of it, it’s a place where we take people’s freedom … it’s not TV, even when a TV actor is in there,” Foxx said. “And so my impression (of the sentencing hearing) was, you know, the world gets to see what these courtroom scenarios look like.”
The extraordinarily high-profile case touched off three years ago when Foxx’s office charged Smollett with orchestrating a phony hate crime attack on himself.
A month later, prosecutors dropped the case at an unpublicized last-minute hearing, in exchange for Smollett having done two days of community service and forfeiting his $10,000 bond money. The surprise dismissal led to widespread confusion and uproar.
A Cook County judge later ruled that Smollett’s whole first case was void, since Foxx had improperly recused herself from the matter. High-powered defense attorney Dan Webb was appointed special prosecutor to investigate whether there was any wrongdoing in the way the case was handled, and potentially charge Smollett again. The new case brought by Webb resulted in Smollett’s conviction last year on five of six felony disorderly conduct charges.
While Webb’s investigation cleared Foxx and her top aides of any criminal wrongdoing, his report noted that her office repeatedly misled the public and misstated facts about the case, which led to some renewed calls for her resignation.
In her remarks to the Tribune, her first full-length interview on the subject, Foxx defended her office’s initial decision to drop the charges against Smollett, saying it was made by seasoned prosecutors who have handled scores of serious high-profile cases.
“(The calculation was), what is the outcome that we see? What does accountability look like? Is he going to plead guilty or not? If he’s not going to plead guilty – he never pled guilty. He took it all the way to the mat without admitting guilt,” she said. “... He’s lost his job, lost his credibility, has become a laughingstock, in the public sphere he’s being held to account. And I think, looking at the case, and evaluating what was happening at the time, that’s the judgment that they made.”
Foxx and her team said at first they were confident in the strength of the investigation, a claim apparently contradicted by a Foxx op-ed in the Tribune saying certain aspects of the evidence against Smollett meant “my office believed the likelihood of securing a conviction was not certain.”
On Thursday, Foxx told the Tribune there was not a discrepancy between those two stances.
“Two things can actually be true at once,” she said. “We could have issues with burden (of proof). Never said that we couldn’t meet the burden, in fact, have always said we couldn’t ask to hold his money, we couldn’t ask him to do community service, if we did not think we had a reasonable belief that we could win this case at trial. We can’t even ask for it. But we can also acknowledge that there were issues with the case.”
Specifically, Foxx said, a public figure made statements on Good Morning America before Smollett was indicted. The claims perhaps “weren’t actually lined up with what the evidence showed. Period. That’s the evaluation. Did it kill the case? No. Is it an issue? Maybe.”
Foxx declined to specify which figures made such statements. Former Chicago police Superintendent Eddie Johnson in 2019 appeared on Good Morning America to talk about accusations against Smollett; that appearance occurred after Smollett had been arrested and charged but before a grand jury indictment had been filed.
Foxx also again denied that Smollett was given especially lenient treatment, pointing out that not long after he was charged, a woman with possible mental health issues who falsely claimed she had been stabbed by a Black man in Grant Park did not face criminal charges at all.
Foxx’s office initially said she withdrew from the case once it was clear Smollett had become a suspect because of her early communications with a relative of Smollett’s, now known to be his sister Jurnee. A few months later, when text messages from Foxx disputing that account were released, the office gave a statement saying Foxx recused herself because of false rumors she was related to the Smollett family.
But Foxx withdrew from the case for both of those reasons, so the statements were not false or contradictory, she said.
“I’m not going to dispute that it could look like a contradiction … we have the ability to look at it and put it all in context. And what I’m telling you is that both things existed at the same time,” she said.
Foxx also came under fire when it was revealed that a memo from a veteran prosecutor, Alan Spellberg, had written an analysis finding that her informal recusal from the Smollett case was legally unsound. Webb’s report found that Foxx’s office falsely stated she had not been made aware of that analysis; a claim Foxx disputed on Thursday.
Then-First Assistant State’s Attorney Joseph Magats did bring Foxx a copy of Spellberg’s analysis, she said, which she gave back to Magats and asked him to summarize for her. She did not remember seeing it until a later date, she said.
“They gave it to me. And I was like, what is this? Because I finally read it,” she said.
At the time, she was relying on an assessment by then-Chief Ethics Officer April Perry, who said their informal recusal practice was sound, according to Foxx. According to Webb’s report, Perry said she gave Foxx’s team several options in light of the Spellberg memo: walking back the informal recusal in public, seeking the appointment of a special prosecutor, or continuing to “wall off” Foxx from the case without formally asking for a special prosecutor.
Foxx declined to answer whether she currently believes Spellberg’s analysis was accurate.
It was “odd,” she said, that questions about her practice of informally withdrawing from cases came up only on the Smollett matter when she had done so in prior instances, including in the analysis of whether Officer Robert Rialmo should be charged for the on-duty fatal shootings of Quintonio LeGrier and Bettie Jones in 2016. She withdrew from that case without withdrawing the whole office; then-First Assistant Eric Sussman took the lead instead.
Ultimately, Foxx said, Webb’s team did not conduct follow-up interviews with her office to try to investigate apparent discrepancies before releasing his report.
In a city plagued with “unrelenting violence,” Foxx said, it doesn’t seem right that so much attention and resources were devoted to Smollett’s case.
And Foxx took her margin of victory in her 2020 re-election as a sign that many Chicago residents — particularly in the Black community — were indifferent to the case. As the Tribune reported at the time, the Smollett case revealed a deep divide along racial and class lines in Chicago and the region over what criminal justice looks like and just how its principles are applied.
“There was this universal belief that everybody in Chicago cared about this with the same ferocity,” Foxx said. “... I think how people in certain neighborhoods see this case will vary very differently from others.”
Ultimately, Foxx said she was saddened that the Smollett matter “cast a pall over the office as a whole.”
“We’re losing good people who are tired, who feel like this is thankless work, who feel like the level of scrutiny that we’re given, even if it’s aimed towards me, is falling on them. And they keep showing up,” she said. “… I want to put this case behind us. Not for me. Not just for me. But for the people in my office who really are doing hard work and are sick of a one-dimensional depiction of who we are.”
____
