Tipsheet

Smackdown: Illinois Prosecutors Bar Association Calls Kim Foxx's Handling of Smollett Case Dishonest, Unethical

Guy Benson
Guy Benson  |  March 29, 2019 1:05 PM

Yesterday witnessed the publication of an extraordinary rebuke of Chicago State's Attorney Kim Foxx by the national association representing district attorneys, in which her conduct in the Smollett case was was picked apart piece by piece.  That scathing statement certainly constitutes an embarrassment and a professional black eye for Ms. Foxx, but it doesn't necessary present a legal problem for her.  A separate memo from the Illinois Bar Association of Prosecutors (IPBA) could be a different story.  One damning assertion after another:

The Illinois Prosecutors Bar Association serves as the voice for nearly 1,000 front line prosecutors across the State who work tirelessly towards the pursuit of justice.  The events of the past few days regarding the Cook County State’s Attorney’s handling of the Jussie Smollett case is not condoned by the IPBA, nor is it representative of the honest ethical work prosecutors provide to the citizens of the State of Illinois on a daily basis. The manner in which this case was dismissed was abnormal and unfamiliar to those who practice law in criminal courthouses across the State.  Prosecutors, defense attorneys, and judges alike do not recognize the arrangement Mr. Smollett received.  Even more problematic, the State’s Attorney and her representatives have fundamentally misled the public on the law and circumstances surrounding the dismissal. 

Right out of the gate, they destroy the spin that Smollett's "alternative prosecution" is normal or par for the course in any way.  The IPBA goes out of its way not to condone Foxx's work, calling it inconsistent with "honest, ethical work."  Then comes their summary of how Foxx "fundamentally misled" the public:

When an elected State’s Attorney recuses herself from a prosecution, Illinois law provides that the court shall appoint a special prosecutor.  See 55 ILCS 5/3-9008(a-15).  Typically, the special prosecutor is a neighboring State’s Attorney, the Attorney General, or the State Appellate Prosecutor.  Here, the State’s Attorney kept the case within her office and thus never actually recused herself as a matter of law. Additionally, the Cook County State’s Attorney’s office falsely informed the public that the uncontested sealing of the criminal court case was “mandatory” under Illinois law.  This statement is not accurate...The appearance of impropriety here is compounded by the fact that this case was not on the regularly scheduled court call, the public had no reasonable notice or opportunity to view these proceedings, and the dismissal was done abruptly at what has been called an “emergency” hearing.  To date, the nature of the purported emergency has not been publicly disclosed.  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. 

This was clearly written before it was revealed that Foxx lied about her recusal, too.  Finally, putting an even finer point on Foxx's claim about how the disposition of this case was nothing out of the ordinary (remember, her office sent around an email begging for examples to help buttress this dubious notion), the IPBA rips that talking point apart:

The State’s Attorney has claimed this arrangement is “available to all defendants” and “not a new or unusual practice.” There has even been an implication it was done in accordance with a statutory diversion program. These statements are plainly misleading and inaccurate. This action was highly unusual, not a statutory diversion program, and not in accordance with well accepted practices of State’s Attorney initiated diversionary programs. The IPBA supports diversion programs, and recognizes the many benefits they provide to the community, the defendant and to the prosecuting agency. Central to any diversion program, however, is that the defendant must accept responsibility. To be clear here, this simply was not a deferred prosecution. Prosecutors must be held to the highest standard of legal ethics in the pursuit of justice. The actions of the Cook County State’s Attorney have fallen woefully short of this expectation. 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. The IPBA condemns these actions.

Devastating. Could sanctions be on the way? Were laws broken in pursuit of this disgraceful resolution? An independent investigation is needed. Meanwhile, where does Foxx go from here, having been publicly upbraided by both the state and national associations of her peers? And how might she handle Mayor Emanuel's upping of the ante, demanding payment in full from Smollett to reimburse the city for their costly and lengthy investigation into the hoax he choreographed for attention and money?


As Leah covered earlier, this invoice is coupled with a threat of a new prosecution if Smollett fails to comply. But before you pronounce yourself too pleased with Emanuel, look who he's gratuitously dragging into the narrative:

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Donald Trump did not cause Jussie Smollett to orchestrate a hate crime against himself for personal financial gain, and lie about it endlessly.  In fact, if this is game Emanuel wants to play, there's a decent case to be made that anti-Trump hysterics are more responsible for this "environment" than anyone else.  Smollett was pandering to that group, and their credulous brethren in the national press, with his false, self-serving accusations, smearing Trump supporters in the process.  Blaming any of that on Trump is a partisan non-sequitur.  But hey, Emanuel probably felt like he had no choice but to play to the intersectionality cult on the heels of so much righteous anger directed at Smollett.  Being a lefty in relatively good standing requires certain ritual genuflections, after all.  I'll leave you with this: Will the misrepresentations never cease?