Pictured above: Jussie Smollett, PaleyFest Los Angeles 2016, by Dominick Dusseault, cropped for sizing, copyright iDominick
Post Authored by Bradley Fuller
I recently represented a Cook County man who was charged with the serious crime of assault. It was alleged that, after receiving some rather distressing personal news, my young client became intoxicated and began shouting obscenities and threats at one of his neighbors. The neighbor, feeling that he might be physically harmed, phoned the local police. Upon arrival, officers conducted a quick investigation and determined that there was probable cause to arrest my client and file a complaint for criminal assault. At the young man’s first court date I met with both the prosecutor and the complaining witness: the neighbor. I explained the unfortunate circumstances that led to my client’s uncharacteristic behavior and informed all parties of his background.
My client had absolutely no criminal record or history of violent behavior. He was a hardworking and law-abiding man who had simply made a terrible, yet isolated, error in judgement. He was extremely remorseful for and embarrassed by his actions. All parties agreed that in this case, the people Cook County would be best served by an alternative resolution to a traditional criminal prosecution. My client would make a sincere apology to his neighbor and agree to complete a set of community service hours at a local charity in exchange for a complete dismissal of the charges. It was understood, of course, that if the young man ever did anything like this again, the State’s Attorney’s Office would immediately seek a criminal conviction and sentence.
Throughout the last decade of my criminal litigation practice, I have resolved hundreds of cases in a similar fashion. In fact, the Cook County State’s Attorney’s Office reports that roughly one in ten charged offenses are ultimately resolved through some process of deferred prosecution.
In the end, my client completed his community service, made amends with his neighbor, and the charges were dropped. By resolving the case in this way, the taxpayers of Cook County were saved thousands of dollars from a strained budget that would otherwise have been allocated to a lengthy and resource-consuming trial process. My client was able to avoid a criminal conviction that might well have cost him his job and his ability to continue to contribute to our society. The neighbor was spared the bothersome obligation of having to appear at multiple court dates and testify before a judge or jury. More importantly, the neighbor received an amicable closure to an unfortunate incident. Though my client may have committed a serious crime, a dismissal of the charges through deferred prosecution was ultimately the best outcome for everyone.
Jussie Smollett was alleged to have made a false report of a hate crime to the Chicago Police Department. He was not accused of perpetrating violence or theft against anyone. Like my client, he has no prior felony convictions (he plead no contest to misdemeanor charges in 2007) and he is by all accounts a law-abiding, gainfully employed, and tax-paying citizen. Why then, are so many citizens outraged by the fact that his case was dismissed in more or less the same way as many others in Cook County?
To be clear, if Mr. Smollett had committed the acts he was accused of, his actions were deplorable. Attempting to garner sympathy, notoriety, and perhaps wealth by fabricating a hate crime is, like assault, a serious transgression. As a proud, life-long Chicagoan, I am deeply distressed by any untrue portrayal of our great city as hostile or bigoted. I believe strongly that anyone who fabricates such a narrative should be exposed and punished. However, I also understand the proven benefits of alternatives to traditional criminal prosecution. How then do we pursue justice in the case of Jussie Smollett?
It is incumbent upon me as a criminal attorney, and a fair and rational thinker, to say that Mr. Smollett is presumed innocent of these allegations. Merely agreeing to forfeit bond money and complete community service hours is not an admission of guilt. It is perfectly reasonable for a falsely accused person to agree to certain terms and conditions in exchange for a dismissal of their criminal case. The right of a defendant in America to maintain their innocence, while at the same time entering into an agreed upon case resolution with the prosecution, is enshrined by the United States Supreme Court in the Case of North Carolina v. Alford (1970).
Conversely, the prosecution’s agreement to dismiss all charges against Mr. Smollett should not serve as an indication that they absolve him of culpability. In fact, the Cook County State’s Attorney’s Office has said publicly that they believe Mr. Smollett c committed the crime of making false claims to the police.
I don’t presume to know the ultimate truth in this case, nor do I pretend to know exactly how best to resolve it. However, t many of the claims being made against the Cook County State’s Attorney’s Office, especially in the popular media, are unfounded.
Much has been made in the media about certain connections between Cook County State’s Attorney Kim Foxx and Mr. Smollett. While it is true that Ms. Foxx and the accused share mutual friends, including several powerful political figures, and it is also true that a family member of Mr. Smollett contacted Ms. Foxx directly about the case during its early stages, this does not, in and of itself, create a per se conflict of interest. In fact, such circumstances of mutual acquaintanceship are quite common statewide, especially in small, rural communities..
As of the writing of this piece, there has been no concrete evidence presented to suggest that Ms. Foxx was under unlawful pressure to afford Mr. Smollett favorable treatment. Nevertheless, Ms. Foxx informally “recused” herself from any direct involvement in the prosecution of Mr. Smollett so as to avoid even the appearance of impropriety.
Several entities, including the Illinois Prosecutors Bar Association, have criticized Ms. Foxx for not turning the case over to an outside agency such as a neighboring State’s Attorney’s Office or the Illinois Attorney General. However, absent a true conflict, handing such a small charge off to another prosecutorial unit may have been unnecessarily cumbersome and costly to taxpayers. The case was placed in the capable hands of First Assistant State’s Attorney Joe Magats, a prosecutor with nearly three decades of relevant experience. Delegating such a case to an assistant prosecutor is an extremely commonplace and responsible practice.
The role of the State’s Attorney, especially in a large jurisdiction such as Cook County, is largely administrative. Ms. Foxx runs an enormous legal organization comprised of hundreds of attorneys and multiple units. Understandably, Ms. Foxx rarely participates in individual prosecutions on a personal practice level. However, it is true to say that Ms. Foxx is ultimately responsible for the professional decisions of her Assistant State’s Attorneys, and it was incumbent upon prosecutor Magats to carry out and achieve the directives and stated goals of Ms. Foxx’s administration in the Smollett case.
While campaigning for office, Ms. Foxx ran on a platform of restorative justice, which de-emphasizes punitive action, such as criminal convictions and incarceration. She promised to focus on methods of healing our once over-policed local communities and to establish rehabilitative practices that are proven to prevent recidivism. To that end, Ms. Foxx vowed to divert resources away from low-level offenses and to marshal prosecutorial efforts against large-scale and violent crimes. She won election decisively over incumbent Anita Alvarez, and by all reasonable standards, her office has fulfilled its promises to the people of Cook County who voted for a more progressive approach towards criminal justice.
Nevertheless, the recorded procedure of the Smollett criminal case was both unique and troublesome. Even the most charitable observer would admit that the matter was handled clumsily, at least from a public relations perspective. It is not the business of the State’s Attorney’s Office to appease the general public, but rather to seek justice and achieve the most beneficial legal outcome for the people of Cook County. However, Ms. Foxx is a democratically elected official, and her administration is ultimately accountable to the people. It seems obvious that the people both demanded and deserved a factual conclusion in this case. To that end, any form of deferred prosecution should have involved an acknowledgement of guilt on behalf of the accused.
Though I can’t pretend to know the precise motive of the prosecution in this case, it seems likely that they employed an alternative to traditional criminal prosecution to save taxpayer dollars, as this was a victimless crime committed by a non-violent offender. Furthermore, proving allegations of felony Disorderly Conduct ,720 ILCS 5/26-1(a)(4), to an unpredictable jury, who will be instructed to presume innocence, is a difficult and uncertain task. The prosecution was perhaps wise to take a $10,000 bond forfeiture combined with a commitment to complete community service, rather than risk a possible acquittal after a costly public trial. One might also consider that the State’s Attorney’s Office wants to encourage victims of hate crimes to come forward without fear of criminal prosecution if not believed.
If Mr. Smollett did knowingly and callously attempt to enrich himself by undermining the credibility of true victims of hate crimes, if he sought to exploit their suffering for personal gain, if he defamed the character of our great city, and manipulated the brave men and women of the Chicago Police Department, then he should be held strictly accountable.
But perhaps he has already? Thus far, Mr. Smollett has been humiliatingly hauled off in handcuffs, booked, and thrown into the notoriously terrifying Cook County jail system. His reputation has been destroyed nationwide and in a way that most people can’t even imagine. He will undoubtedly be the subject of ridicule and scorn for the rest of his public life, and he is ordered to repay society by completing community service work.
Mr. Smollett has perhaps terminally jeopardized his once lucrative acting career and has forfeited $10,000 of bond money. What then would society gain by his continued prosecution? Is it rational to criticize the State’s Attorney’s Office for disposing of this low-level, non-violent offense just as Ms. Foxx promised to do in her campaign?
False allegations of a hate crime perpetrated in our great city are infuriating, and I understand the desire for a more transparent and conclusive resolution to this case. But, let us not allow ourselves to be overtaken by a media-fueled campaign of pitchfork punitive justice. My young client, who recently lost his wife (and, momentarily, his social comportment), did not need to be criminally prosecuted. Regardless of whether Mr. Smollett is guilty or innocent, he will hopefully find a way to move forward from this regrettable incident with humility, empathy, and understanding, and so should we.
About the Author:
Bradley spent the first seven years of his career proudly representing indigent criminal clients as a public defender. During his time in public service he successfully litigated thousands of criminal cases including traffic, DUI, domestic battery, drug, and murder. Additionally, he was honored to serve as the Director of the Stephenson County Drug Court. He now works for a wonderful full-service law firm in the heart of Chicago’s Loop. He recently studied international criminal law at the prestigious United Nations Interregional Crime and Justice Research Institute in Torino, Italy.