The Cook County State’s Attorney’s Office on Tuesday dismissed the multicount indictment against “Empire” actor Jussie Smollett, sparking widespread confusion, even anger.
“It is an embarrassment to our Nation!” President Trump tweeted early Thursday morning. Trump added that the FBI and Justice Department will review the case, which he called “outrageous.” (Justice Department spokeswoman Kerri Kupec and FBI spokeswoman Carol Cratty declined to comment.)
In a statement two days earlier, State Attorney Kimberly M. Foxx had announced that dropping the charges against the actor was “a just disposition and appropriate resolution.” But other top officials criticized the decision to dismiss the 16 felony counts, which included being charged with lying to police about being physically attacked by men who yelled homophobic and racist slurs and, he said, shouted “this is MAGA country.”
Smollett is a gay black man.
Chicago Mayor Rahm Emanuel (D) called the dismissal “a whitewash of justice,” and Police Superintendent Eddie Johnson, who has spoken out against Smollett in the news media, said that a deal was “brokered” to “circumvent the judicial system.”
On Tuesday, Foxx said that she stood by the initial investigation and her office’s initial charging decisions.
These seemingly conflicting beliefs have left people puzzled. Some have wondered whether Smollett struck a deal with prosecutors. How do the state attorney’s positions reconcile with Tuesday’s dismissal of charges, five weeks after the actor’s arrest and 18 days after his indictment?
Was there a plea deal?
Both the prosecution and defense danced around whether Smollett made a deal with prosecutors. (Presumably, Smollett did not want to admit guilt, and prosecutors wanted to avoid conceding the alternative.)
Semantics aside, Smollett agreed to a set of conditions that he satisfied before the charges were dismissed Tuesday.
The prosecution required the actor to complete 16 hours of community service through the Rainbow/PUSH Coalition, a Chicago-based social justice organization, according to State’s Attorney’s Office spokeswoman Kiera Ellis.
Smollett spent Saturday and Monday volunteering, the New York Times reported, lending a hand in the bookstore and speaking to children “about the importance of discipline and a good attitude.”
The actor also agreed to forfeit the $10,000 bond he posted to avoid being held in jail, a sum he otherwise would have gotten back.
“Had there been no forfeiture of his bond to the City of Chicago or community service, we would not have dismissed the charges,” Ellis said.
If prosecutors had a strong case against Smollett, why would they drop the charges?
A prosecutor’s job is not to seek the most serious conviction or severe penalty. It’s to do justice.
Prosecutors consider many factors when deciding to file charges or dismiss a case. There could be new evidence; the office could have too quickly indicted a case; or they don’t believe they can prove the case beyond a reasonable doubt. Or the prosecutor may believe dismissal was the just result.
In Smollett’s case, as The Washington Post reported, Cook County prosecutors “took into account Smollett’s lack of a violent criminal background” and the “facts and circumstances of the case,” lead prosecutor Joe Magats said. The decision “should not be considered by anyone as a statement, a signal, a hint, anything, that the case is weak or the case fell apart.”
The office didn’t “drop” the charges. They dismissed Smollett’s case in exchange for his completion of several conditions — a prosecutorial tool known as an alternative to prosecution.
What is an alternative to prosecution?
“Alternative to prosecution” is an umbrella term for various ways prosecutors can resolve a case. Two options that Ellis mentioned during an interview with The Post are deferred prosecution and pretrial diversion. Both end with a dismissal.
Under certain circumstances, the statute permits alternatives for low-level, nonviolent felonies, such as the charges brought against Smollett. Diversion allows a criminal defendant to begin satisfying the agreed-upon terms while his or her case is pending. After the conditions are completed, the nonviolent offenses are dismissed.
During a deferred prosecution, the criminal case is suspended (meaning that it is still an open case and cannot be dismissed or sealed) for the accused to participate in an offender program.
For both, if a defendant fails to meet the conditions, the case proceeds to trial.
“If there’s an opportunity to use an alternative to prosecution, we take that route,” Ellis explained. Alternatives to prosecution, she said, are not a new or unusual practice. In the past two years, since State Attorney Foxx took office, her attorneys have referred more than 5,700 cases for alternative prosecution.
What happened here?
Smollett defense attorney Patricia Brown Holmes, who did not return a request for comment, said during a news conference Tuesday that “there is no deferred prosecution.” And while Brown may literally be accurate, Smollett’s case ended via the related prosecutorial tool, which is why it was sealed Tuesday, as is permitted by Illinois statute.
Smollett’s case was evaluated “under the same criteria that would occur for, and is available to, any defendant with similar circumstances,” Ellis said. The office “didn’t treat this case differently from any other.”
The State’s Attorney’s Office stands behind the police investigation and its initial charging decisions. On Tuesday, Foxx said, “We did not exonerate Mr. Smollett.”
Smollett’s case, for better or worse, played out in the national spotlight. As a public figure — and one condemned in the media by many high-ranking officials — he has already been tried in the court of public opinion.
But he has neither pleaded guilty nor accepted responsibility for any wrongdoing. To the contrary, Smollett maintains his innocence.
Elahe Izadi contributed to this report.