In a strongly worded letter Thursday, the Illinois Prosecutors Bar Association ripped Cook County State's Attorney Kim Foxx, accusing her of making "repeated misleading and deceptive statements to the public" and having "failed in her most fundamental ethical obligations to the public" during the course of the dismissal of charges against "Empire" actor Jussie Smollett.
The IPBA is an association of lawyers similar to the American Bar Association or one of the numerous state bar associations. It does not have the authority to discipline lawyers, but it claims the authority to speak "as the voice for nearly 1,000 front line prosecutors across the State."
Foxx has repeatedly insisted that Smollett, who allegedly staged a racist, homophobic attack against himself in late January and filed a false police report in order to further his career, did not receive special treatment and that the diversionary deal he received was available to any defendant in the state.
The IPBA took strong issue with that claim, stating, "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."
The letter went on to repeatedly accuse Foxx of having intentionally deceived the public about both the law and circumstances surrounding the dismissal of Smollett's case.
The letter firstly accused Foxx of having misled the public by claiming that she recused herself from the case, when she in fact did not. Foxx herself conceded this point earlier this week when she confessed that she had not formally recused herself, contrary to her public statements.
The letter also took Foxx to task for falsely claiming that the sealing of Smollett's case records was mandatory. According to the letter:
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 letter was also highly critical of the unusual manner in which the case was dismissed, noting 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."
As the letter states, "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."
The letter closed by re-emphasizing that the deal that was offered to Smollett was "highly unusual" and "not in accordance with well accepted practices of State's Attorney initiated diversionary programs."
The letter also highlighted the impropriety of offering Smollett diversion at all while he is still implausibly claiming he is innocent, noting, "The IPBA supports diversion programs, and recognizes the many benefits they provide to the community, the defendant and to the prosecuting agency. Central to any diversion program, however, is that the defendant must accept responsibility."
In an unequivocal closing statement, the letter reads, "The IPBA condemns these actions. This irregular arrangement was an affront to prosecutors across the State, the Chicago Police Department, victims of hate crimes, and the people of the City of Chicago and Cook County."
The letter echoed the sentiments of the National District Attorneys' Association, which issued a letter on Wednesday that was harshly critical of Foxx's handling of the case in many particulars. However, the NDAA specifically focused on the impropriety of offering Smollett deferred prosecution while he refuses to accept responsibility for his actions.
According to the NDAA:
[W]hen a prosecutor seeks to resolve a case through diversion or some other alternative to prosecution, it should be done so with an acknowledgement of culpability on the part of the defendant. A case with the consequential effects of Mr. Smollett's should not be resolved without a finding of guilt or innocence ... NDAA believes strongly in seeking alternatives to incarceration, and in fact, prosecutors around the country offer these alternatives to thousands of defendants every single day. However, as stated above, these alternatives, such as drug treatment, mental health treatment, counseling and/or community service come with an acknowledgement of responsibility from the defendant. These alternatives also offer the ability for the defendant to preserve their criminal record, again, in exchange for admission of responsibility.
Foxx has not responded to requests for comment from multiple media outlets about the letters from the IPBA and the NDAA.