Illinois Bar Condemns Kim Foxx for Letting Smollett Off, Sees Possible Crimes

Recent developments in the bombshell case of “Empire” actor Jussie Smollett, whose felony charges of lying to police after having allegedly reported a false hate crime were mysteriously dropped, could indicate trouble for Cook County State Attorney Kim Foxx.

Now, under mounting scrutiny, Foxx faces growing outrage from the public, Chicago’s police force, federal investigators, and the Illinois Bar Association, who recently admonished Foxx in a scathing letter.

In the letter, the Illinois Barr Association outlines potential criminal behavior on the part of Foxx regarding her handling of the case, demanding answers in a story that continues to capture the nation’s attention – as well as its anger.

From Red State:

To say this is a strongly worded letter is a bit of an understatement.

As you’ve no doubt heard, Illinois State Attorney Kim Foxx is in the middle of a firestorm for her apparent corrupt handling of the Jussie Smollett case. After inexplicably dropping all charges, she’s told several different stories, including some that are objectively false. She’s under FBI review, under fire from the Chicago PD, and she’s now taking hits from the Illinois Bar Association.

Excerpts from the letter are as follows.

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.

The public has the right to know the truth, and we set out to do that here.

The letter then goes on to cite specific laws that may have been broken by Foxx’s conduct. To start, her recusal that wasn’t really a recusal is a big issue.

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.

The question will be whether her statement of recusal is enough to trigger the fact that she then didn’t follow state law in response. Common sense is rarely common in matters of law, but why would this law exist if it can simply be skirted by saying “well, I didn’t really recuse you guys!” when someone is caught breaking it?

It goes on to point out how even more possible illegality by Foxx’s office in their handling of the sealing of the case, as well as the use of an emergency hearing.

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.  To the extent the case was even eligible for an immediate seal, that action was discretionary, not mandatory, and only upon the proper filing of a petition to seal.  See 20 ILCS 2630/5.2(g)(2).  For seals not subject to Section 5.2(g)(2), the process employed in this case by the State’s Attorney effectively denied law enforcement agencies of legally required Notice (See 20 ILCS 2630/5.2(d)(4)) and the legal opportunity to object to the sealing of the file (See 20 ILCS 2630/5.2(d)(5)).  The State’s Attorney not only declined to fight the sealing of this case in court, but then provided false information to the public regarding it.

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.

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