UPDATE: On Thursday, Chicago Mayor Rahm Emanuel announced he wanted Jussie Smollett to cover the cost – amounting to $130,000 – for the Chicago police department’s investigation into the actor’s claim that he was attacked in a hate crime.
“The city feels this is a reasonable and legally justifiable amount to help offset the cost of the investigation,” spokesman for the legal department Bill McCaffrey told NBC News. Smollett’s attorneys responded in a statement via NBC News that “Jussie has paid enough.”
On Tuesday, it was reported that Chicago prosecutors had dropped all 16 criminal charges against Empire star Jussie Smollett as part of a deferred prosecution agreement against him. Smollett had been charged with 16 counts of disorderly conduct for filing a false police report and was accused of having paid two brothers to stage an elaborate hate crime against him, reportedly because he was unsatisfied with his pay on the show. (Smollett pled not guilty, and continuously maintained his innocence.) As part of the conditions of the deal, Smollett did 16 hours of community service and forfeited his $10,000 bond to the city.
When the charges were dropped, everyone from right-wing pundits to Mayor Rahm Emanuel started to weigh in, expressing befuddlement and, in many cases, outrage at the decision. Fuel was added to the fire when Joseph Magats, the first assistant state’s attorney who helmed the case, publicly said that the office had dropped the charges despite not being fully convinced of Smollett’s innocence. “This was not an exoneration. To say that he was exonerated by us or anyone is not true,” Magats said. “We believe he did what he was charged with doing.” Even President Donald Trump felt it necessary to weigh in, tweeting on Thursday, “FBI & DOJ to review the outrageous Jussie Smollett case in Chicago. It is an embarrassment to our Nation.”
Amid the outrage, the accusations, and the rampant speculation (Michelle Obama’s name has been dropped by not a few conspiracy theorists), here’s what we know about the circumstances surrounding Smollett’s case, and why the charges may have been dropped against him — and what we don’t.
Smollett was charged with a non-violent crime, and likely wouldn’t have served jail time to begin with.
In an interview with Chicago radio station WBEZ 91.5, district attorney Kim Foxx, who recused herself from the case, said that while she understands why the decision to drop the charges may have been confusing to those “who don’t understand the intricacies of the justice system,” “the likelihood that someone would get a prison sentence for a Class 4 felony is slim” — particularly when they were, like Smollett, a non-violent offender. (Smollett is not a first-time offender: in 2007, he pleaded no contest to providing false information to police when he was pulled over on suspicion of DUI. He was sentenced to two years probation and a stint in an alcohol treatment center; he completed the terms of his probation in 2008.)
“I think when you look at other Class 4 felonies, I think when you look at other disorderly conduct, and you ask have we done this before? I think the data will shed some clarity on that,” Foxx said.
And to an extent, this is true, says Paul C. Meyers, an associate attorney at Robert J. Callahan and Associates, a criminal law firm in Chicago. “It is not at all abnormal for the State to dismiss felony charges after a first time offender does community service,” he told Rolling Stone.
For first-time non-drug, non-theft, felony offenses, what is often offered is what Meyers describes as “Branch 9 deferred prosecution,” which is offered early on in a case and requires involves completing a set number of hours of community service, and does not involve a guilty plea. “That is what would normally happen in a situation like this,” Meyers said.
The speed with which prosecutors dropped the charges against Smollett is highly unusual.
What is most striking to all the Chicago-based criminal defense attorneys Rolling Stone spoke with is not that the charges were dropped against Smollett, but the extremely speedy circumstances under which it happened. “Let’s put it this way: I don’t know if my clients given the same exact set of circumstances could’ve gotten the same deal, and if they would have, I can’t imagine it would have ever been this quickly,” says David Freiberg, a criminal defense attorney in Chicago. “That’s why everyone is so shocked.”
In most cases of a Branch 9 deferred prosecution agreement, for instance, charges are dismissed only if a certain number of hours of community service is completed and there are no new arrests after 9-12 months. Yet for prosecutors to drop charges against Smollett after just a few weeks and only 16 hours of community service is “highly abnormal,” says Meyers.
Additionally, in many instances, the state must obtain permission from police before offering a deferred prosecution-type agreement. In Smollett’s case, this clearly did not happen, as evidenced by the many comments publicly made by police investigators expressing outrage at the state’s decision. “The CPD is very annoyed because they weren’t contacted about this deal,” says Freiberg. “They are besides themselves.”
As part of the conditions of his charges being lifted, Smollett forfeited $10,000 bond.
Much has been made of the fact that Smollett forfeited a $10,000 bond as part of the terms of his deal, which is not uncommon for deferred prosecution agreements, says Meyers. “They can use your bond for restitution [for the victim],” he says, noting that the disorderly conduct statute in Cook County specifically provides for up to $10,000 in restitution.
But the precise dollar amount of Smollett’s bond has raised eyebrows. “I can guarantee the CPD spent thousands and thousands of dollars interviewing witnesses and watching the camera footage,” said Freiberg. $10,000 “is not gonna make a dent in terms of what the state spent.” He estimates the approximate amount covering the costs of the investigation would be at least $50,000.
District attorney Kim Foxx recused herself from the case after emails surfaced between Foxx and Tina Tchen, a former Michelle Obama aide who is a friend of Smollett’s family.
Prior to Smollett actually being charged, Tina Tchen, a former chief of staff for Michelle Obama, reached out to Foxx on behalf of the Smollett family to express “concerns” about how the case was being handled by investigators,. According to communications between Foxx and Tchen, which were released by the State Attorney’s Office Foxx told Tchen that she was trying to get the case transferred to the FBI. Foxx later recused herself from the case. Tchen issued a statement saying she was a family friend of the Smolletts: “My sole activity was to put the chief prosecutor in the case in touch with an alleged victim’s family who had concerns about how the investigation was being characterized in public.”
Foxx’s handling of the case was nonetheless criticized after she put Magats, her second-in-command, in charge. “In Illinois, a recusal means you and your office have to be removed. So that was no recusal,” said Steven Goldberg, a criminal defense attorney at Goldberg and Associates. “You have the attorney general’s office represent them, or you petition the judge by saying there’s a conflict of interest, just like with the Laquan McDonald case,” during which a prosecutor was brought in from another county.
Indeed, the National Defense Attorney’s Organization issued a statement criticizing Foxx’s handling of the case on those grounds: “First, when a chief prosecutor recuses him or herself, the recusal must apply to the entire office, not just the elected or appointed prosecutor,” the National District Attorneys Association said in a statement on Wednesday. “This is consistent with best practices for prosecutors’ offices around the country. Second, prosecutors should not take advice from politically connected friends of the accused. Each case should be approached with the goal of justice for victims while protecting the rights of the defendant.”
Intense media coverage and internal Chicago Police Department leaks may have contributed to the decision to drop the charges.
According to TMZ, the Chicago PD is “furious” that the criminal charges have been dropped against Smollett, but it’s possible that the department’s behavior may have contributed to the decision to drop the charges to begin with. There have been numerous leaks related to the case, with several police reports released Wednesday after it was revealed that the charges were dropped against him.
While the Chicago PD has promised to investigate the source of internal leaks, Smollett’s attorneys have long criticized the way the police handled the case. That argument was underscored by a statement released by Smollett’s attorney Patricia Brown Holmes, who wrote on Wednesday that she was “disappointed the local authorities have continued their campaign against Jussie Smollett after the charges against him have been dropped. “
It’s possible that Smollett’s attorneys argued that the police’s poor handling of the case, combined with the massive media coverage, would have made it difficult for Smollett to get a fair trial, which could certainly have contributed to the prosecutors’ decision to drop the charges against him. “I think cases are always different when there is heavy media coverage. I’m sure had this proceeded to trial, his lawyers would have filed a motion to change venue, but I doubt it would be granted,” said Meyers, citing Chicago police officer Jason Van Dyke’s attorneys’ failed attempt to request a venue change for the trial of the 2014 shooting of Laquan McDonald. “The leaks and press conferences certainly would give a defense attorney fodder to argue a bias inside and outside the courtroom. I would.“
Smollett’s attorneys have filed a motion to seal the case, which was granted by a judge (though there is lingering confusion over what that actually entails). So it’s unclear how much more we’ll actually learn for sure. Still, the circumstances surrounding the case are confusing, to say the least. “It could be that there were leaks, it could be that the investigation wasn’t as above board as the state attorney’s thought it was,” Freiberg said. “We just don’t know….maybe something happened where the office thought they couldn’t win or something else unbeknownst to anyone. Anything is possible, especially in Chicago.”