To say this is a strongly worded letter is a bit of an understatement.

As you’ve no doubt heard, Illinois State Attorney Kim Foxx is in the middle of a firestorm for her apparent corrupt handling of the Jussie Smollett case. After inexplicably dropping all charges, she’s told several different stories, including some that are objectively false. She’s under FBI review, under fire from the Chicago PD, and she’s now taking hits from the Illinois Prosecutors Bar Association.

Excerpts from the letter are as follows.

The Illinois Prosecutors Bar Association serves as the voice for nearly 1,000 front line prosecutors across the State who work tirelessly towards the pursuit of justice.  The events of the past few days regarding the Cook County State’s Attorney’s handling of the Jussie Smollett case is not condoned by the IPBA, nor is it representative of the honest ethical work prosecutors provide to the citizens of the State of Illinois on a daily basis.

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. 

The letter then goes on to cite specific laws that may have been broken by Foxx’s conduct. To start, her recusal that wasn’t really a recusal is a big issue.

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.

The question will be whether her statement of recusal is enough to trigger the fact that she then didn’t follow state law in response. Common sense is rarely common in matters of law, but why would this law exist if it can simply be skirted by saying “well, I didn’t really recuse you guys!” when someone is caught breaking it?

It goes on to point out more possible illegality (or at least unethical behavior) by Foxx’s office in their handling of the sealing of the case, as well as the use of an emergency hearing.

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. 

Clearly, Foxx and her office lied to the public about sealing the case. She’s now trying to walk that back by claiming it was accidental but that makes no sense given their initial assertion it was mandatory. Also, because they did not give law enforcement the proper legally required notice, her office may have also broken the law in that regard. Chicago PD has the right to object to the sealing of the case and that was not provided for them in this instance.

Lastly, the Illinois Prosecutors Bar tackles the blatant lie that the deal given to Smollett is standard practice. To be frank, it’s simply not. It’s essentially unheard of and that’s backed up by this letter.

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. 

Prosecutors must be held to the highest standard of legal ethics in the pursuit of justice.  The actions of the Cook County State’s Attorney have fallen woefully short of this expectation.  Through the repeated misleading and deceptive statements to the public on Illinois law and circumstances surrounding the Smollett dismissal, the State’s Attorney has failed in her most fundamental ethical obligations to the public.  The IPBA condemns these actions.

They close out the letter with further admonishment of the highly question behavior that went on here.

This is not going away. If I were to guess, I’d bet that Kim Foxx is regretting her decision to try to whitewash this case. I don’t know if she really thought she could get away with it or if she thought this would pass as standard politics in Chicago, but the entire country has taken notice. She’s being barraged from all sides, not by partisan sources, but by others in her profession, including some who have the power to disbar her. A day ago I would have laughed at the thought that she may be forced to resign, but it’s a real possibly now. If the Chicago PD make good on its threat to Smollett and takes him back to court over the $130,000 he cost the city, this is going to go from bad to worse for Foxx.

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