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Prosecutors, Wary of Appearances, Deliberated On How to Explain Smollett Decision


Documents released on Friday showed that the day before they dropped all charges against the actor Jussie Smollett, who had been accused of staging a hate crime, prosecutors deliberated over the precise wording of their explanation, cognizant of how the public might perceive their sudden withdrawal from the case.

According to correspondence released by the Cook County State’s Attorney’s Office, prosecutors had been discussing the resolution of the case with Mr. Smollett’s lawyer in the days leading up to March 26, when the office dropped all 16 felony counts against him. Mr. Smollett, 36, had been accused of paying two acquaintances to stage a racist and homophobic attack against him, during which they shouted slurs and placed a noose around his neck.

On March 25, Mr. Smollett’s lawyer, Patricia Holmes, emailed proposed language for the state’s attorney’s office to use when announcing in court that it would be dropping the case. Ms. Holmes suggested that prosecutors say that Mr. Smollett is a “dedicated citizen of Chicago who volunteers and contributes regularly in the Chicago area community.” Mr. Smollett had agreed to forfeit the $10,000 bond paid to release him from jail, and Ms. Holmes suggested prosecutors mention that, too.

The proposed statement also suggested that the prosecutors should say that “a charge is merely an accusation and that a defendant is presumed innocent until and unless proven guilty.”

In emails spanning from around 4 p.m. to 10 p.m. on March 25, staff at the state’s attorney’s office parsed the language from the defense lawyer and edited the statement so that it would not indicate that Mr. Smollett was either guilty or innocent of staging the attack. They also sought to tone down language praising him for his community service work.

“Off the top of my head, this could be construed as the defendant being able to buy his way out of the case because he is a good guy,” Joseph Magats, the top deputy to State’s Attorney Kim Foxx, wrote in an email to his colleagues about the defense lawyer’s proposal.

Risa Lanier, another top prosecutor, wrote that she objected to including the language suggested by Ms. Holmes that said Mr. Smollett should be presumed innocent unless proven guilty. Ms. Lanier suggested a new statement that cut out the defense lawyer’s complimentary tone, but that also would avoid any appearance that Mr. Smollett had, in effect, pleaded guilty.

“That way we aren’t overselling the defendant,” Ms. Lanier wrote in the email, “and we aren’t indicating that his volunteer work was the result of any deal between the attorneys, which would indicate guilt.”

At another point in the email conversation, one prosecutor made a point to change the statement from saying that prosecutors believed this was “the most just disposition” to simply being “a just disposition.”

In the final statement, prosecutors did cite his volunteer work and bond forfeiture as a reason for withdrawing the case. Mr. Smollett has long been involved in the Black AIDS Institute, whose founder vouched for him in a letter that the defense lawyer passed along to the prosecutors.

He has also volunteered for Rainbow/PUSH, the civil rights organization led by the Rev. Jesse L. Jackson, who also sent a letter vouching for Mr. Smollett. Ms. Holmes told Ms. Lanier in a March 23 email that Mr. Smollett planned to spend 15 hours volunteering at Rainbow/PUSH over that weekend, “as discussed yesterday.”

After the prosecutors announced their decision, Chicago officials, including the mayor at the time, Rahm Emanuel, and the police superintendent, Eddie Johnson, denounced the office’s move. Prosecutors then took the unusual step of saying that their decision to drop the charges “didn’t exonerate him.”

Many details from Mr. Smollett’s case had been concealed until last week, when a judge in Chicago ordered that Ms. Smollett’s case file be unsealed. The first portion of documents released by the Chicago Police Department on Thursday showed that just days after he was indicted on Feb. 28, prosecutors told detectives that they were thinking of settling the charges.

However, the documents released this week did not provide any answers about why the prosecutors so quickly decided to drop the case. The State’s Attorney’s Office has declined to release numerous pieces of internal correspondence, citing an Illinois law that protects their deliberations from public disclosure.

Ms. Foxx, the office’s top official, had removed herself from the case, and in some text messages released on Friday, her rationale for doing so differed from her office’s earlier explanation: that she had contact with representatives for the actor.

But in one text exchange, Ms. Foxx said that a colleague told her she needed to separate herself from the case because there were rumors that Ms. Foxx was “related or closely connected to the Smolletts.”

“She said it was pervasive among CPD and that I should recuse,” Ms. Foxx said, referring to the Chicago Police Department.

“I thought it was dumb but acquiesced,” the text message said. “It’s actually just racist.” (Ms. Foxx is black, as is Mr. Smollett.)

A Chicago police spokesman, Anthony Guglielmi, said that he was personally unaware of comments within the department of that nature.

Previously released files showed that the day after the grand jury indictment, Ms. Foxx texted a colleague saying that she thought the office was treating Mr. Smollett too harshly, even though she was supposed to keep her distance from the case. There has been no evidence that she interceded to make prosecutors in her office end the case.

But Ms. Foxx addressed the controversy about her involvement in the case in a statement accompanying the documents released on Friday. “I did not have a conflict of interest in this case; only a sincere desire to serve the community,” she said. Nonetheless, she acknowledged the confusion about her role, saying, “I am sorry that despite the best intentions, our efforts were less than what was required of the moment.”

The more than 2,000 pages of records released on Friday also showed that based on the accounts of the two men who attacked Mr. Smollett, who told the police that Mr. Smollett had paid them to do so, the police investigated whether one of Mr. Smollet’s managers may have played a role in planning the incident. The manager was never charged, and when the authorities charged Mr. Smollett, they did not mention the manager having any involvement in a crime.



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