By Jim George
April 4, 2019
While it may raise howls of derision from the apparently millions of Americans who think that lawyers are a blight upon the Republic, it is my firm belief that approximately 99% of all lawyers in America strive to conduct their practices in an honest, civil and, most importantly, ethical manner. I cannot speak for every single one of that cohort, but I can definitely speak for two of them, my law and life partner, Judi, and myself when I say that the antics — and there’s no better way to describe her conduct — of State’s Attorney of Crook, er, Cook County in regard to the Jessie Smollett case in Chicago are blatantly and sickeningly unethical. It was disgusting to read the first accounts of her apparently newly created method of “alternative dispositions”, about which more later, as it appeared, in the early stages, she might just get away with her brand of “in-your-face” lawlessness. Almost as gag-inducing was the sanctimonious speech Smollett gave, telling the world he had been “exonerated” and that he “wouldn’t be my Mother’s son if I had done the things reported.” What unmitigated rot! Pure fiction, although there are several much more, shall we say, colorful words I could have — and have– used to describe this entire kabuki dance.
One of the several reasons I decided to research this entire dismal episode what that I saw writings in what was once called the Mainstream Media, at a time when that title was accorded with respect, now composed of thoroughly discredited propaganda organs of the Democrat Party, buying hook, line and sinker Smollett’s Courthouse steps speech proclaiming his complete and total innocence of 16 felony charges handed down by a Grand Jury. One such column, also as cringe-worthy as Smollett’s speech, if not more so, appeared in the New York Times over the weekend. There, in that publication referred to by Klavan as “a former newspaper”, the always reliable propagandist for the far-left and a bona fide Trump hater,Charles Blow, put together a series of statements which were, for the most part, divorced from reality, and from the actual facts which have been in the public domain since about mid_February.
The author referred to the incident as a “trivial crime and entertainment story” and “an “interesting Hollywood drama, but meaningless in the grand scheme of things” and concluded with this lovely piece of — dare I say it?– hateful commentary:
“Folks, what you are seeing is a media being bullied into bending over backward to placate the people who endlessly accuse them of bias. I believe you are also seeing an expression of subconscious race bias in the media itself that truly registers sensation at the thought of this black man’s deception.
“Smollett’s greatest offense in this regard was not lying, if indeed he did, but lying about white people who support a racist in the White House.”
Now that we have, in the interest of balance, heard from “the other side of the moon”, we should consider the real world, many views from Chicago writers and authorities of Bar Associations opining on the ethical issues Ms Foxx has stumbled (?) into.
We start that look at the real world of Chicago politics, which one might hear from time to time is the very pinnacle of corruption in our country. I’m also aware that such a word as pinnacle, denoting lofty altitudes, is the wrong word to describe such a universally known level of corruption. Our look at that real world, one Ms. Foxx occupies and has sullied by her actions, should start with the Illinois Prosecutors Bar Association, which issued a statement sharply critical of her actions in this matter. I urge reading it in full for a solid grounding in the serious ethical issues involved in her handling of this case:
“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.
“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.
“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.”
The Bar Association’s statement also puts the lie to Ms. Foxx’s assurances to the public that this procedure, which she termed a diversionary program “available to all defendants.:
“Lastly, the State’s Attorney has claimed this arrangement is “available to all defendants” and “not a new or unusual practice.” There has even been an implication it was done in accordance with a statutory diversion program. These statements are plainly misleading and inaccurate. This action was highly unusual, not a statutory diversion program, and not in accordance with well accepted practices of State’s Attorney initiated diversionary programs. 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. To be clear here, this simply was not a deferred prosecution.”
Their reprimand concluded by describing her conduct as the polar opposite of “trivial”, as tut-tutted by the New York Times:
” ‘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. We strongly encourage our members and the public to review the National District Attorneys Associations statement on prosecutorial best practices in high profile cases.’ “
Before turning to the opinions and analysis of some of the better writers in that real world–Chicago–it should be noted that the Chicago Tribune has published an excellent comprehensive timeline of all events in this case up to March 29, 2019, and it is a very helpful resource in trying to sort out all the twists and turns in this sad display of pure corruption.
Now to take up events “on the ground”, consider first the columnist I consider to be the “best of the best”, John Kass of the Chicago Tribune. He has been reporting on Chicago politics for over 30 years, and starts his discussion in his usual pithy and direct manner:
““I think it (the Smollett case) has opened an opportunity for us to have conversations around what does justice look like,” Foxx told WBEZ.
“Oh, really? What justice looks like? In Cook County? Kim Foxx, that’s so precious. Are you serious?
“Since I was born in Chicago, with the smell of the Union Stockyards in my nose, I can’t really tell you what justice looks like with Kim Foxx leading the parade.
“But I can tell you what desperate politics looks like. And I’m going to tell you some of it today, including a story about the desperate emails sent to Foxx’s employees, asking them to come up with examples to support her foolishness with Smollett.
“And about Foxx’s so-called “recusal” from the case, which wasn’t a true recusal. It was a story, the kind Chicago politicians tell to children and journalists.
“Foxx’s troubles began when she inexplicably compromised herself ethically through inappropriate contacts with Obama Celebrity Friends who wanted her help with the Smollett case.
“And then she dropped charges against Smollett — charges approved by a Cook County grand jury — alleging that the Hollywood star of the TV show “Empire” faked his own hate crime and blamed it on supporters of President Donald Trump.”
He then got to the meat of the whole ethics imbroglio in which Foxx’s office sent out a request to other prosecutors to help her out of the ethical dilemma she had gotten herself into”
“And then came that panicky email Foxx’s office sent out, asking prosecutors for “examples of cases, felony preferable, where we, in exercising our discretion, have entered into verbal agreements with defense attorneys to dismiss charges against an offender if certain conditions were met, such as the payment of restitution, completion of community service, etc. but the defendant was not placed in a formal diversion program.”
“In other words: Please help me. I’ve screwed up, and I need examples to show people that what I did is really not all that unusual.
“I asked a Cook County judge about this.
““How stupid is it to put in writing that you’re advertising for excuses after the fact?” said the judge.
” “No further questions, Your Honor.” “
Another writer with the Tribune, Eric Zorn, noted a few other “tone-deaf” statements by Foxx in trying to extricate hersself from the pit she had dug for herself, entitled “Kim Foxx will and should lose her job over the Jussie Smollett case”:
“Her tone-deaf statements included equating Smollett to the raft of no-name, low-level, nonviolent offenders who have received the “go and sin no more” treatment, and patronizing those who are outraged by the outcome as “people who don’t understand the intricacies of the justice system.”
“Here’s what we understand: High-profile criminal cases are the lens through which the public sees and evaluates the administration of justice as a whole.”
“It was a fairly basic task. They failed spectacularly.
“The process that brought a surprise end to the case was anything but transparent. Prosecutors didn’t even alert reporters to the “emergency” hearing where they dropped, without explanation, all 16 felony disorderly conduct charges, and where they didn’t object to the sealing of the court file.
“And although prosecutors got Smollett to forfeit his bond of $10,000 — not much of a dent in the budget of an actor who reportedly makes more than 10 times that amount per episode of “Empire” — they did not even ask for a confession or apology.
“That allowed Smollett to repair immediately to the courthouse lobby and preen for the cameras about his innocence.
“His lawyers have since repeatedly echoed this claim, for example responding Thursday to the city’s demand that Smollett pay the cost of the investigation, later estimated at $130,000, with a statement saying, “It is the mayor and the police chief who owe Jussie — owe him an apology — for dragging an innocent man’s character through the mud. Jussie has paid enough.”
“Such galling pieties have infuriated all of us who wanted to see the accused selfish charlatan humbled and fined for allegedly perpetrating such an ugly hoax.”
Other good discussions can be found here, here, here and here.
Interestingly, the last piece looks into whether Smollett got a sweetheart deal by “ratting out” his celebrity lawyer, Mark Geragos, who was implicated in the embezzlement charges against “Porn Lawyer” Avenatti, those charges being filed one day before Smollett got “the deal of a lifetime”:
“Smollett’s celebrity attorney Geragos is officially the co-conspirator in Avenatti’s criminal case in two different states for trying to extort $25 million from Nike. Avenatti claims he has proof that Nike was paying college and high school basketball players and that the sportswear company’s practices were illegal. He is also facing charges of defrauding a bank for a loan for over $4 million as well as lying to clients about their settlements in order to use their monies to fund his own enterprises, including a chain of coffee houses.”
To be “fair and balanced”, a ;phrase which seems to drive some of he far-left batty (perhaps better said: more batty), I should note that Foxx wrote an Op-Ed in the Chicago Tribune defending her actions, replete with many of the buzzwords our progressive colleagues like to bandy about such as “have a conversation”, “transparency”, “smart justice”, “rethink the justice system”, etc., etc. It was also replete with what the reprimand of the Bar Association, quoted above, called “repeated deceptive and misleading statements”:
“So, why isn’t Smollett in prison or at least on trial? There are two different answers to this, both equally important.
“First, the law. There were specific aspects of the evidence and testimony presented to the office that would have made securing a conviction against Smollett uncertain. In determining whether or not to pursue charges, prosecutors are required to balance the severity of the crime against the likelihood of securing a conviction. For a variety of reasons, including public statements made about the evidence in this case, my office believed the likelihood of securing a conviction was not certain.
“In the interest of full transparency, I would prefer these records be made public. However, in this case, Illinois law allows defendants in certain circumstances to request that public records remain sealed. Smollett chose to pursue that avenue, and so my office is barred from releasing those records without his approval.”
“I was elected on a promise to rethink the justice system, to keep people out of prison who do not pose a danger to the community. I promised to spend my office’s finite resources on the most serious crimes in order to create communities that are both safer and fairer.
“Our community is safer in every sense of the word when murderers and rapists are locked away. But we can’t allow fearmongers to devalue the tremendous progress we’ve made in the last year. Since taking office, I’ve sought to employ alternative prosecutions, diversions, alternate outcomes and other forms of smart justice, and it has been working — violent crime in Chicago is down overall.”
Notwithstanding her defenses, in the real world:
“Foxx could be in trouble. According to FOIA documents released several weeks ago, she communicated with both a former aide to President Barack Obama and his wife, Michelle, and a member of the Smollett family, believed to be Smollett’s sister. Because of those communications, Foxx supposedly “recused” herself from the Smollett case, but last week her office revealed that Foxx had used the term only “colloquially” and had never officially stepped away from the case.”
Finally, I used the phrase “nobody people” in my title. It caught my eye as a fitting description of those who really do suffer from this unequal justice under law, and it appeared in one of several analyses in the past few days about people who are not named Smollett or Clinton, but who have names like Watts and Bohanon-Silmon. This article related the tragic account of Ms Silmon’s 21 year old son, Andre D. Bohanon, who was robbed and killed in 2005. His murder is still unsolved. She expressed her frustration in these words:
” “I’m insulted and quite frankly heartbroken that all of this time, attention, detective work, manpower and hours upon hours were spent on this Jessie [sic] Smollett case, yet hundreds of murders go unsolved every year!” Deneen Bohanon-Silmon complained in an email.”
Adowa Watts’ daughter was fatally shot in 2016 while riding in a vehicle with an ex-boyfriend, Darrell Junious. The evidence was strong that he had shot her, according to this account:
“He admitted firing shots, but allegedly told police he threw the gun away, according to Watts.
” “She had a gunshot wound on the left side of her head that blew off the back part of her head,” the mother told me.
“Watts said Junious “drove around for a few hours, passing up hospitals” before taking Ali to West Suburban Hospital where she was DOA.
” “When I got to the hospital, he did not have any blood on him nowhere which means he changed his clothes, because there was a splatter of blood all over his [car] seat,” she told me.
“Watts is outraged that Junious was charged only with unlawful use of a weapon.
” “Police came right out and said he was guilty of murder but they couldn’t prove it,” she said.”
She said that she and a group of Mothers who have lost chidren to gun violence met with prosecutors for an outreach and counselling session attended by Foxx:
” “We never got an answer to our questions about why the shooters weren’t charged. She kept saying that we are backed up and it’s not that they are not trying to get to the case,” Watts recalled.
” “If this had happened politicians and police officers or doctors or someone like that, they would have done something already. We are nobody people.” “
Those words embody the potential dangers which many see as troublesome fault lines in our society caused by well-founded concerns that certain classes “get away with murder” and “skate” because of their celebrity, money, political clout or all of the above.
I am definitely of that view and, for that reason, among others, this article is most respectfully dedicated to “the nobody people” everywhere.
*I am grateful to the incisive wit of John Kass for the new words for MAGA.