How the Jussie Smollett Case Threatens Kim Foxx’s Efforts to Reform Chicago Law Enforcement
Kim Foxx, the Cook County state’s attorney, nearly six feet tall and dressed in a canary-yellow jacket, took the microphone at an April 6th gathering of the Reverend Jesse Jackson’s Rainbow/PUSH Coalition. Twelve days earlier, her office had suddenly dropped criminal charges against the “Empire” actor Jussie Smollett, who had been accused of faking a hate crime. Since then, she said, she had seen a “distortion of who I am and what I stand on.” Now, with her voice rising to meet the cheers of the Chicago crowd, she declared that she was “the same Kim Foxx” whom they had elected in 2016, and she was not going to quit.
It was a familiar setting but an unfamiliar position for Foxx, who got her job by pledging to deliver a fairer, more transparent version of justice to Chicago. In a city where large sections of the community mistrust law enforcement and the police solve fewer than one in five homicides, Foxx has promised “to reimagine how we look at our criminal-justice system,” as she put it in a conversation we had, last week, in her office, on the thirty-second floor of the Cook County Administration Building, across the street from Daley Plaza. She described the approach to law enforcement in Chicago and many parts of the country as “a white-hats-versus-black-hats universe.” But, she added, “the world is just not that simple.”
Foxx has been under fire for her handling of the Smollett case, in which her office dropped sixteen felony counts of disorderly conduct in return for Smollett forfeiting a ten-thousand-dollar bond and volunteering, for two days, at Rainbow/PUSH. Smollett admitted no responsibility and insists that he is innocent. Mayor Rahm Emanuel, who, on Thursday, sued Smollett to recoup $130,106 in police-overtime expenses resulting from the case, called it a “whitewash of justice.” The Illinois Prosecutors Bar Association said that Foxx “failed in her most fundamental ethical obligations.” The leader of the Chicago police union and a group of suburban police chiefs called on her to resign. Even strong allies of Foxx and her reform agenda are questioning her handling of a prosecution that lies at the intersection of race, politics, and celebrity, and continues to draw national headlines.
Foxx has said that there is more to know about the Smollett case, but for now she isn’t saying what. A Cook County judge sealed the record, at the request of the defense. In a case where the cast of characters is worthy of a scene in “Bonfire of the Vanities,” it’s difficult to sort out each player’s role, or to know for certain the strength of the case against Smollett. The superintendent of the Chicago Police Department, Eddie Johnson, who called Smollett’s behavior “despicable,” has expressed confidence about the actor’s guilt. Meanwhile, Foxx wrote, in an op-ed for the Chicago Tribune, that her “office believed the likelihood of securing a conviction was not certain.” At Foxx’s request, Cook County’s inspector general, Patrick M. Blanchard, will review her office’s handling of the case. As she put it to me, “I would love for this case to get the scrutiny that the public has asked for, without me tainting it.”
Foxx was a first-time candidate when she launched a challenge against Anita Alvarez, a two-term incumbent state’s attorney, in the Democratic primary of 2016. Foxx, a Chicago native who had attended Southern Illinois University for college and law school, had served for twelve years as an assistant state’s attorney, prosecuting sex crimes and working in the juvenile division. She had also spent two years working with Toni Preckwinkle, the president of the Cook County Board of Commissioners, including a stint as Preckwinkle’s chief of staff, before quitting to face Alvarez. In her campaign, she pledged to focus on addressing gun violence and spend less attention on pursuing minor charges, such as small-scale theft and driving on a suspended license, which landed a disproportionate number of black and brown residents in jail.
During the campaign, Foxx received the backing of an independent-expenditure group, Illinois Safety & Justice, which collected more than four hundred thousand dollars from the philanthropist George Soros and three hundred thousand from the Civic Participation Action fund, a nonprofit that funds projects and policies to “advance the interests of low income people of color.” Then, in November, 2015, a judge ordered the release of police video showing the white Chicago police officer Jason Van Dyke shooting a black teen-ager named Laquan McDonald, as McDonald, seemingly disoriented, walked away from him. Alvarez did not announce murder charges against Van Dyke until the day of the video’s release, thirteen months after the shooting. (A jury convicted Van Dyke of second-degree murder last year, and a judge sentenced him to just less than seven years in prison.)
Anger over McDonald’s death and about a stunning series of police-misconduct allegations that came out around this time—including a revelation that Chicago had spent more than six hundred million dollars in settlements and legal fees since 2004—propelled Foxx to victory by a wide margin and helped persuade Emanuel to give up his plan to seek a third term. Foxx became Cook County’s first elected black chief prosecutor, overseeing the second-largest district attorney’s office in the country, which employs roughly seven hundred and fifty prosecutors. The victory came with the challenge of returning credibility to what she described as a “broken” criminal-justice system. Neighborhoods that had failed to benefit from Chicago’s thriving downtown economy “were literally bleeding out,” she told me. “The people who needed to believe in the system the most trusted it the least, and suffered a great deal.”
“Sometimes people don’t want to work with us because we’ve also caused harm. And, if we don’t talk about the harm that the system has caused and the distrust that people have, and we still need to rely on those same people to help us build cases, we’re not going to get anywhere,” Foxx said. “That has meant looking at wrongful convictions. That has meant looking at people who get low-level felony convictions and the collateral consequences thereof—and the impact that it has on the community.”
Foxx has, without question, made meaningful changes to the way the state’s attorney’s office does business. Since taking office, in December, 2016, she has vacated dozens of convictions that were won based on evidence from corrupt cops, and she has apologized to the defendants. She has stopped filing felony charges for thefts worth less than a thousand dollars, preferring to allow her investigators and attorneys to deal with violent crime. She favors expunging misdemeanor marijuana convictions. Her office no longer opposes the release from custody of suspects in certain nonviolent crimes who are being held because they cannot afford cash bail of a thousand dollars or less. And, for drivers whose licenses have been suspended, often because of an inability to pay fines, she leaves decisions about prosecution to municipal authorities.
Terence Campbell, a defense attorney, told me that he saw a difference within weeks of Foxx’s arrival. He was among a group of lawyers representing four men who were wrongly convicted in the 1995 murder of two owners of a used-car lot on Chicago’s Southwest Side. His client, Larod Styles, who was sixteen years old at the time, was sentenced to life without parole. After a years-long fight to free the men on the basis of fingerprint evidence that strongly pointed to a different suspect, prosecutors in Alvarez’s office abandoned the convictions, in 2016, but vowed to retry Styles and one of his co-defendants.
At the request of the men’s attorneys, Foxx’s team took a closer look in 2017 and, within two days, decided to drop the case for good. Campbell said, “Where the state’s attorney’s office under the former administration had been reluctant to do the right thing for a long time, Kim Foxx did, soon after she came into office.” To Campbell, Foxx is “turning the state’s attorney’s office in the right direction. That office is a massive institution. To try and change the culture when there are so many people who have been there for so long, who have their own fiefdoms—it’s a monumental task. Even small turns are good.”
Craig Futterman, a law professor at the University of Chicago, spent seven years fighting the Cook County state’s attorney’s office for the release of tens of thousands of allegations of misconduct by Chicago police officers. Finally, an Illinois appellate court agreed to the release, in 2015. Futterman credits Foxx—who made the unprecedented decision to post years of case-by-case data about felony prosecutions on the state’s attorney’s Web site—with a “dramatic, positive improvement.” Until she took charge, he said, “everything about that office has been a black hole.” He sees the uproar over the Smollett case as the result of opportunism by critics of Foxx who have “an interest in blocking change, in blocking accountability, and in blocking efforts to address mass incarceration and racism within the system.”
Foxx’s efforts have put her at odds with Chicago police, who argue that her office isn’t focussed on law and order and that, too often, police officers build cases only for prosecutors toss them out. Kevin W. Graham, the president of the Chicago branch of the Fraternal Order of Police, is one of Foxx’s chief antagonists. “Our frustration with the state’s attorney’s office didn’t start with Jussie Smollett,” he told me. “Look, if you have laws on the books, and if you’re not arresting people and you don’t prosecute them, and nobody goes to jail, people have the idea that the laws don’t mean anything.”
Foxx sees it differently, of course. Arguing that Smollett was only one of nearly six thousand defendants to receive similar treatment since she took office, she told the Rainbow/PUSH gathering, “I cannot run an office that is driven by anger and public sentiment. I must run an office that looks at the facts, the evidence, and the law on every case.” Chicago is currently recording more murders than New York and Los Angeles combined, and she is choosing how to allocate resources, mindful that her decisions carry risks, political and otherwise. She said that she had moved six assistant state’s attorneys from traffic-case duty to the criminal division and had assigned five prosecutors to full-time roles in some of the city’s most violent neighborhoods, where they serve as the public face of the office.
“There is such a lack of nuance,” Foxx said, of those who scoff at her approach. “It’s ‘hard or soft.’ It’s never ‘smart.’ It’s never ‘strategic.’ It’s all or nothing. We’ve tried to run an office that is using our resources to deal with those who cause the most harm. What you’ll hear about are those things that we’re not doing, or we’re not prosecuting at the lower end, as though it’s at the expense of, and not the enhancement of, public safety.”
Despite the debate in the law-enforcement community, little that Foxx did in her first two years caught the public eye, even as the city’s troubled history in the areas of gun crime and policing became the focus of the battle to replace Emanuel as mayor. Following a runoff mayoral election, on April 2nd of this year, the victor was Lori Lightfoot, a political novice and former federal prosecutor who had evaluated police-misconduct cases as head of the civilian Chicago Police Board. She, too, has said that the city must rethink its policing strategy. Meanwhile, the number of homicides in the city in the first three months of the year was eight-four this year, compared to a hundred and fifteen, in 2018, and a hundred and forty-six, in 2017, according to a Chicago Tribune database.
In her victory speech, Lightfoot did something cheesy but heartfelt. In a packed ballroom at the Chicago Hilton, near the end of an upbeat address in which she spoke of unity, she asked everyone to take the hand of the person next to them. “You may be strangers,” she said, “but, in this room, in this city, we are all neighbors. I want you to feel that power, neighbor to neighbor, that comes when we unite and join together as one Chicago, indivisible and united for all.” Yet, as Lightfoot knows well, having travelled from precinct to precinct throughout the city, the continuing debate over Foxx’s agenda and the reaction to the Smollett case reveal deep and enduring divisions over crime and policing.
Foxx emerged from the background in January in an unexpected way. The spark was a searing six-hour television documentary, “Surviving R. Kelly,” in which women accused the R. & B. singer, a Chicago resident, of years of predatory and abusive behavior, including numerous episodes involving underage girls. Foxx summoned reporters a few days after the documentary came out to announce that her office was being flooded with calls demanding to know what she intended to do. Without evidence of crimes, she explained, she could do nothing. She invited witnesses and victims to speak up, calling on them to “have the courage to tell their stories.” Witnesses came forward. On February 22nd, a Chicago grand jury indicted Kelly on ten counts of sexual abuse. (He has pleaded not guilty.)
To Foxx, the case was personal. She said that she had been sexually abused as a young girl, by an older relative, and that she had been raped when she was in the second grade, by two boys, while she was on the way home from school. She wanted to use the high-profile Kelly allegations not just to build a case against him, if warranted, but also to convey to victims that “the criminal-justice system welcomes them.” Foxx believes that victims, perpetrators, and the general public are watching how the prosecutor’s office handles such cases, particularly when the accused is a celebrity. “I would certainly hope that anyone accused of a crime would not be treated differently based on their status,” she told me.
Enter Jussie Smollett, a gay, black, thirty-six-year-old actor. He told police that two men had attacked him, at about 2 A.M., on January 29th, near his apartment, just north of the Chicago River. He said that the men yelled racial and homophobic slurs, poured a chemical on him, and put a rope around his neck. Chicago authorities treated the case as a hate crime, and social media erupted in outrage. By mid-February, however, police concluded that Smollett had paid two acquaintances to stage the attack, as a publicity stunt. On February 20th, the state’s attorney’s office filed a felony charge of disorderly conduct against Smollett, accusing him of orchestrating a hoax and lying about it. On March 8th, a Cook County grand jury followed up with a sixteen-count indictment.
As the case developed, things grew complicated for Foxx. On the day that the first felony charge was filed, Foxx’s office announced that she had stepped away from the case a week earlier, to avoid an appearance of impropriety. The case had been turned over to her deputy, Joseph Magats. It soon emerged that Tina Tchen, a Chicago attorney and former East Wing chief of staff to Michelle Obama, had contacted Foxx on behalf of Smollett’s family shortly after the alleged attack. Electronic records indicate that Foxx then exchanged text messages with a relative of Smollett’s and pressed Eddie Johnson, the police superintendent, to turn over the case to the F.B.I.
Foxx and Magats then traded text messages about the case on the night of March 8, following the announcement of Smollett’s indictment. This was several weeks after she said she had recused herself from the case. In the exchange, which is included in hundreds of pages of emails and text messages released by her office on Tuesday night in response to a public-records request by Chicago media, Foxx contrasted the charges against R. Kelly with the charges against Smollett. “Pedophile with 4 victims 10 counts,” she texted. “Washed up celeb who lied to cops, 16. On a case eligible for deferred prosecution I think it’s indicative of something we should be looking at generally. Just because we can charge something doesn’t mean we should.” She also wrote, “Sooo…… I’m recused, but when people start accusing us of overcharging cases…16 counts on a class 4 becomes exhibit A.” Magats replied, “Yes. I can see where that can be seen as excessive.”
When, on March 26th, Foxx’s office dropped the charges, the criticism was swift and withering.“From top to bottom, this is not on the level,” Emanuel told reporters, while Johnson called it “a brokered deal in secrecy.” Kevin Graham, of the Fraternal Order of Police, told me, “We think she should step down. If you’re not going to do the job, let someone else do it. We’re looking for some answers.” The court file is now sealed, at Smollett’s request, and neither Foxx nor her aides are sharing details while the Cook County inspector general’s inquiry is underway. In place of answers, there is guesswork, fuelled by Chicago’s history of favoritism and corruption. Did Smollett get a break because of his fame and his connections? Did police or prosecutors slip up in building the case against him?
The day after the Smollett case was closed, Foxx did a round of interviews with local reporters, which shed little light on why the office had dropped the charges so quickly, and without notifying the police department. If the case was as strong as Johnson and Magats reported, why didn’t prosecutors insist that Smollett take responsibility or apologize? Foxx isn’t saying. When I asked whether she was involved in any part of her office’s decision-making about Smollett, she told me, “Not at all, not at all.” She said she learned of the plan to drop the charges the night before the March 26th hearing.
Some at the Rainbow/PUSH gathering saw racism in the attacks on Foxx. Approximately thirty police chiefs called for her resignation last week, and, notably, all of them are white. But Foxx also has plenty of white supporters. Thomas F. Geraghty, a law professor at Northwestern University, put it simply, saying that Foxx “is the subject of unfair attacks because of her progressive policies. Now is the time to stand up for her.” Michael Pfleger, a local Catholic priest who is a Foxx loyalist and a longtime activist against gun violence, wrote on Twitter, “The MAGA culture that lives in Law Enforcement is one of the reasons Black and Brown communities don’t trust police…..Bull Connor lives.”
The fallout from the Smollett case also demonstrates the difficulties facing Foxx, Lightfoot, and Preckwinkle, three black women and self-described reformers, in Chicago’s three most important elected jobs. For her part, Foxx is predictably unhappy that the Smollett case is taking up so much oxygen. “When we talk about the legitimacy of our criminal-justice system, there’s always someone watching,” she said. “I’ve always assumed that there will always be someone unhappy with the decisions that I make, but I’ve never run from the conversation about it. I’ve never run from apologizing where I think that I’ve done wrong.”