Unanswered Questions in the Jussie Smollett Case

by Cully Stimson: What a mess. So many questions, and so little transparency in this nutty, high-visibility case.

For example, why did the Cook County State’s Attorney’s Office drop the case against Jussie Smollett? Why did it agree to have the record sealed? Why didn’t it consult with the police who investigated the crimes before disposing of the case?

Why did it give Smollett a sweetheart deal, rather than force him to go to trial or at least insist on a guilty plea, or even a plea of no contest? Was there political pressure to drop the case? And if so, who exerted the pressure on whom, and to what end?

These questions demand answers. The way this case ended leaves a bad taste in everyone’s mouth, much like the college admissions scandal angered everyone. This was not a just result for such a serious allegation, which proved to be a sick hoax.

Chicago Mayor Rahm Emanuel and Police Superintendent Eddie Johnson were understandably furious about the outcome. “Where’s the accountability in the system? You cannot have, because of a person’s position, one set of rules applies to them and another set of rules apply to everyone else,” steamed Emanuel.

Johnson, who is black, stood by his department’s investigation and conclusions, stating, “At the end of the day it was Smollett who committed this hoax.” Earlier he said, “Why would anyone, especially an African-American man, use the symbolism of a noose to make false allegations? How could someone look at the hatred and suffering associated with that symbol … how can an individual who has been embraced by the city of Chicago turn around and slap everyone in this city in the face by making these false claim?”

The explanation offered by the State’s Attorney’s Office, that if he was found guilty, it was unlikely that Smollett would have gone to prison and his punishment would likely have just been restitution and community service misses the point. Even if this were true, Smollett would have been found guilty of this heinous hoax. He would have received the legal and societal opprobrium he deserves.

And what to make of the texts and emails from Tina Tchen to Kim Foxx? Tchen, a former Obama administration official, and friend of Foxx, weighed in on Smollett’s behalf. Did that influence the ultimate disposition of the case, and if so, how?

These, and other related questions, cry out for answers.

We already have some answers, however. Here we will unpack the case, the investigation, the indictment, why and how cases are usually resolved, why this case matters, and wrestle with lingering questions of how this ended the way it did.

The Facts of the Case and Investigation
According to news reports, on Jan. 22, Smollett says he received a letter at the Chicago studios where the television show “Empire” is filmed. (For those who don’t watch much television—like me—Smollett is/was a star in the series.) The letter allegedly contained white powder, a drawing of a stick figure hanging from a tree, and cutout letters stating, “Smollett Jussie you will die black f—.”

During an interview with ABC News, Smollett said that the return address was in large red letters and said MAGA, a reference to the Trump moniker “Make America Great Again.” That case was turned over to the FBI, and was not part of the Chicago Police Department investigation or the state’s attorney’s case against Smollett.

We don’t know what the FBI, or for that matter the U.S. attorney for the Northern District of Illinois (Chicago), has done with that investigation, or whether Smollett, or anyone else, is a “person of interest” in that case. But President Donald Trump has called on the FBI to investigate why the state charges were dropped, so there may be more to this story in the weeks to come.

A week later, Smollett alleged that on Jan. 29, at 2 a.m., as he was walking to his residence, he was “approached by two offenders who engaged in racial and homophobic slurs” directed at Smollett. The two men struck Smollett “about the face and body causing minor injuries.” The police reports released so far (which were released by the police to rebut Smollett’s claims of innocence) contain these allegations.

There are other police reports in this case that have not been released by the Chicago Police Department, and the ones that have been released have been (properly) redacted to cloak the identities of persons and sensitive addresses.

Among the as-yet unreleased reports would be the original police report when Smollett first reported the attack, and any supplemental reports stemming from that initial report. We also don’t know if there are other police reports that document how and when police first suspected, then investigated the possibility that Smollett, not two random men, orchestrated the attack against himself.

And finally, none of the released police reports state exactly what the alleged assaulters actually said to Smollett during their attack, or how and where they poured the bleach on Smollett during the attack. And there are pages missing from the released police reports as well.

But the released reports evince a thorough professional investigation by the Chicago Police Department, and also point to one inescapable conclusion: This case is not a whodunit. Smollett orchestrated this fake hate crime attack on himself, as the evidence against him is overwhelming.

According to the reports, Smollett enlisted the help of two brothers, Abimbola Osundairo and Olabinjo Osundairo, to carry out the attack against him. The Osundairos are both black males.

According to the indictment, Smollett alleged that one of his attackers was a white male (not true), that the white male wore a ski mask, and that as they beat him, they poured a liquid onto him and put a rope around his neck and pulled him by the rope.

How the police figured out who the Osundairos were is not clear from the police reports, but it likely happened because of the extensive video surveillance police reviewed from hotels, stores, and street cameras.

Police eventually identified and spoke with the Osundairos, who told police about the wild scheme. They said that Smollett gave them a check for $3,500 on Jan. 27, and that he also gave them a $100 bill on Jan. 25, which they used to purchase the rope, gloves, face masks, a red hat, and other items.

Police recovered video surveillance that confirmed the two purchased those items at the store, and checked their bank records and confirmed a deposit on Jan. 28—one day before the assault—of a check for $3,500 from Smollett.

They told police about the bleach. Police had recovered a bottle of El Yucateco Hot Sauce on Feb. 7 near the location of 406 North New Street, which the Osundairos later confirmed was the bottle they filled with bleach and poured on Smollett.

Police obtained photos of Smollett’s car and showed the Osundairos the photos. They admitted that the car in the photo was the same car Smollett drove them in on two separate occasions right before the assault.

There is also extensive video surveillance footage referenced in the police reports that refute Smollett’s claims and bolster the case against him.

The Indictment
Smollett was indicted on 16 related offenses under Illinois law. All 16 charges allege a violation of 720 Illinois Compiled Statute 5/26-1(a)(4), Disorderly Conduct. The charges all center around the activity on Jan. 29, and relate to knowingly transmitting false information to Chicago Police Detective Kim Murray and Chicago Police Officer Muhammed Baig. Each of the separate charges contain specific facts related to criminal conduct by Smollett.

If the State’s Attorney’s Office had refused to give Smollett a plea deal, and if he decided to go to trial, it is likely the defense would have filed a motion to dismiss some of the charges as duplicative.

Even if the judge refused to grant the defense motion and Smollett was convicted of each charge, it is likely that the sentencing judge would have merged the offenses for sentencing purposes given the overlap between the charges. In other words, his sentence would not have gone up simply because he was charged with 16 (allegedly) different charges.

Plea Bargains Are the Norm, but Not This One
Most criminal cases end in some form a disposition short of trial. This is true across the country, in every prosecutor’s office in every state and jurisdiction.

But the final outcome of this case was anything but routine or normal. Smollett was allowed to walk away from the case without admitting guilt, he forfeited his $10,000 bond, the prosecutor gave him credit for 16 hours of community service, his case was sealed by a hand-selected judge, and he was allowed to maintain his innocence.

At least now, the city has turned around and is seeking $130,000 from Smollett to cover the costs of the investigation.

Yet squandered city resources and the 16 hours of community service Smollett had to perform is nothing compared to the harm he caused, and the very real possibility of the violence that could have come from this hoax. Sixteen hours of community service is what a judge awards a juvenile first-time petty thief.

Prosecutors have myriad options for disposing of cases short of trial, while also ensuring justice is done (which is the duty of the prosecutor). Common dispositions short of trial include:

• Guilty pleas to each and every felony charge.
• Guilty plea to some felony charges in exchange for dropping others.
• Guilty plea to one felony charge in exchange for dropping all other charges.
• Prosecutor can reduce a felony to a misdemeanor in exchange for a guilty plea to the misdemeanor.
• Prosecutor can drop some misdemeanor charges in exchange for a guilty plea to some or one misdemeanor charge.
• Prosecutor can drop all misdemeanor charges in exchange for a guilty plea to one misdemeanor charge.
• Prosecutor can agree to a conditional guilty plea and diversion into a specialized program, successful completion of which results in the dismissal of the charges.
• Defendant can agree to plead no contest to a charge or charges, in exchange to the prosecutor agreeing to dismiss other charge(s).
• Prosecutor can agree not to indict a defendant with a felony if he pleads guilty to a specific misdemeanor(s).
• A prosecutor can dismiss the charges for any number of reasons, to include:
  Factual innocence.
  Inability to prove the case beyond a reasonable doubt.
  Inability to admit key evidence necessary to convict.
  Loss of a key witness necessary to convict.
  If doing so is in the interests of justice.

There are other more obscure dispositions of cases one can find around the country, but these are the most common.

In virtually all of those scenarios, the prosecutor informs the victim of the crime of the disposition of the case, and in most circumstances, the prosecutor is required to inform the victim of the plea bargain in order to give the victim a chance to object.

Similarly, prosecutors routinely work closely with and notify the police who investigated the case that a plea bargain is in the works. Police are used to cases being disposed of short of trial, as most cases don’t go to trial.

There is a natural and usually healthy tension between the prosecutor’s office and the local police department. Police work hard, investigate crimes, and bring cases to the prosecutor in the hope that the prosecutor will pursue charges.

In many instances, when the police investigate a crime and hand the case over to the prosecutor, the prosecutor will—after making an independent evaluation of the facts, evidence, and strength of the case—file charges against the suspect.

Sometimes police agree with the charges; other times, they disagree. But the relationship goes on, as long as each side communicates and individuals trust each other.

Why This Case Matters
This case is important on a number of levels.

First, Smollett staged a despicable crime, according to Chicago Police and the state’s attorney. The sick script evoked one of the ugliest chapters of America’s past—where African-Americans were routinely lynched by white supremacists just for sport—and tied it to anti-Trump hatred by feeding the narrative of some who believe Trump endorses white supremacists.

The noose, the MAGA hat, the bleach (ostensibly to “make” Smollett’s skin white), the white perpetrator were all designed to fan the flames of a country on the razor’s edge regarding race, equality, and justice. He knew the pot he was stirring would come to a boil if the hoax wasn’t discovered.

Second, the case also matters because the public needs to have confidence in the criminal justice system. No one is above the law. This case sends a loud and clear message to the public that there is a two-tiered justice system—one for the rich and well-connected, and one for the rest of us.

Even the National District Attorneys Association, which represents America’s 2,700 prosecutor offices around the country, strongly criticized the handling of this case. In a sharply worded statement, it pointed to grave deficiencies in the handling of this case that, in its opinion, diminished the public’s confidence in the criminal justice system.

It noted that when Foxx, the elected state’s attorney, recused herself from the case, the entire office should have been recused.

Second, as the National District Attorneys Association noted, prosecutors “should not take advice from politically connected friends of the accused.” Rather, each case should be approached with the “goal of justice for victims while protecting the rights of the defendant.”

Third, when a prosecutor tries to resolve a case through diversion or an alternative to prosecution, the defendant must be required to acknowledge his culpability. As the National District Attorneys Association explained, a case “with the consequential effects of Mr. Smollett’s should not be resolved without a finding of guilt or innocence.”

Fourth, expunging Smollett’s record “at this immediate state is counter to transparency.” As noted above, the state’s attorney had numerous ways to dispose of the case short of trial that still held the defendant accountable. Yet for some reason—not yet known to the public—Foxx gave Smollett a pass and sealed the record so no one could see the truth.

And finally, the National District Attorneys Association noted that “hate crimes should be prosecuted vigorously,” but the burden of proof should not be “artificially increased due to the misguided decisions of others.”

This case has been a mess for Chicago and a sad episode for America. Chicago’s recent decision to seek $130,000 from Smollett is a sign he may not have the last word, and it remains to be seen whether federal prosecutors will at some point choose to step in.

The case may be sealed, but it certainly isn’t over.
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Charles “Cully” Stimson (@cullystimson)is a leading expert in national security, homeland security, crime control, immigration and drug policy at The Heritage Foundation’s Center for Legal and Judicial Studies and the Center for National Defense. He shared this article on The Daily Signal.

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