IPBA statement on the Smollett case

A little late, but hey, I've been busy.

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.

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.

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.

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.

http://www.ilpba.org/announcements/7249825

No1, is the IPBA also jumping to conclusions?

"The manner in which this case was dismissed was abnormal"

Not for celebrities.

@sh76 said
A little late, but hey, I've been busy.

[quote] 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 repres ...[text shortened]... uote]

http://www.ilpba.org/announcements/7249825

No1, is the IPBA also jumping to conclusions?

Why isn't this in the proper thread? I saw it last week.

I don't have time to respond now, but believe the letter is misleading and inaccurate. Details will follow in the proper thread when I get a chance.

@no1marauder said
Why isn't this in the proper thread? I saw it last week.

I don't have time to respond now, but believe the letter is misleading and inaccurate. Details will follow in the proper thread when I get a chance.

LOL...its only 1000 front line prosecutors saying this....you have serious issues dude.

@sh76 said
A little late, but hey, I've been busy.

[quote] 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 repres ...[text shortened]... uote]

http://www.ilpba.org/announcements/7249825

No1, is the IPBA also jumping to conclusions?

I might as well do this here since otherwise I'd have to copy and paste the OP to the other thread (where this discussion belongs since it will inevitably cover the same ground). There's a lot of material and my time is limited, so I'll do one accusation at a time.

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).

This is misleading (a-15) actually says: Notwithstanding subsections (a-5) and (a-10) of this Section, the State's Attorney may file a petition to recuse himself or herself from a cause or proceeding for any other reason he or she deems appropriate and the court shall appoint a special prosecutor as provided in this Section.http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=005500050K3-9008

Obviously, Foxx never did so, so the statute is irrelevant. Foxx office's statement clearly stated she was keeping the case in her office:

“Based on those prior conversations and out of an abundance of caution, last week State’s Attorney Foxx decided to remove herself from the decision making in this matter and delegated it to her First Assistant Joseph Magats, a 28-year veteran prosecutor,” he added.

https://chicago.suntimes.com/news/kim-foxx-jussie-smollett-investigation-recuses-campaign-donation/

Note this occurred in the middle of February and the IPBA made no protest at the time only complaining after the case was resolved in a manner they apparently didn't like.

I question whether the Cook County State Attorney's Office has ever requested a Special Prosecutor be appointed for the least serious type of felony charged in their jurisdiction. The Office has over 700 prosecutors and is far better equipped to handle its cases than the much smaller offices where a Special Prosecutor would have to be appointed from. There seems no good reason why the entire Office should have withdrawn itself from this case given the relevant facts and again the IPBA's after the fact complaint on this point seems spurious.

@mott-the-hoople said
LOL...its only 1000 front line prosecutors saying this....you have serious issues dude.

I love how lawyers haggle over technicalities of the law when the truth of the case is evident for all. Sometimes I think they think that their half witted legalities might change some hearts.

I mean, the case is so cut and dry hard line democrats are laughing at it, like Chris Rock.

Smollett was nominated an award by the NAACP and Chris Rock was the host. He was warned not to mention Smollett, but he just could not help himself.

Hilarious!

https://www.cbsnews.com/news/chris-rock-rips-jussie-smollett-naacp-image-awards/

Actor-comedian Chris Rock took verbal jabs at actor Jussie Smollett before he presented the award for outstanding comedy series to ABC's "black-ish" at the 50th annual NAACP Image Awards Saturday night. Smollett, who had all criminal charges against him dropped last week for allegedly staging a hate crime, did not attend the awards.





"They said no Jussie Smollett jokes," Rock said. "Yeah, I know, but what a waste of light skin. Do you know what I could do with that light skin? That curly hair, my career would be out of here. I would be running Hollywood. What the hell was he thinking? You are known as 'Jessie' for now on. You don't even get the 'u' anymore. That 'u' was for respect. You ain't getting no respect from me."

The ratings of Empire have also dropped dramatically

https://www.cinemablend.com/television/1600531/how-empires-producer-feels-about-the-recent-ratings-drop

People are appalled.

As to the sealing issue, the complaint that law enforcement agencies had no opportunity to object is completely baseless under Illinois law. The relevant statute is clear and unambiguous:

2) Eligible Records. Arrests or charges not

initiated by arrest resulting in acquittal or dismissal with prejudice, except as excluded by subsection (a)(3)(B), that occur on or after January 1, 2018 (the effective date of Public Act 100-282), may be sealed immediately if the petition is filed with the circuit court clerk on the same day and during the same hearing in which the case is disposed.
(3) When Records are Eligible to be Immediately

Sealed. Eligible records under paragraph (2) of this subsection (g) may be sealed immediately after entry of the final disposition of a case, notwithstanding the disposition of other charges in the same case.
(4) Notice of Eligibility for Immediate Sealing. Upon

entry of a disposition for an eligible record under this subsection (g), the defendant shall be informed by the court of his or her right to have eligible records immediately sealed and the procedure for the immediate sealing of these records.
(5) Procedure. The following procedures apply to

immediate sealing under this subsection (g).
(A) Filing the Petition. Upon entry of the final

disposition of the case, the defendant's attorney may immediately petition the court, on behalf of the defendant, for immediate sealing of eligible records under paragraph (2) of this subsection (g) that are entered on or after January 1, 2018 (the effective date of Public Act 100-282). The immediate sealing petition may be filed with the circuit court clerk during the hearing in which the final disposition of the case is entered. If the defendant's attorney does not file the petition for immediate sealing during the hearing, the defendant may file a petition for sealing at any time as authorized under subsection (c)(3)(A).
(B) Contents of Petition. The immediate sealing

petition shall be verified and shall contain the petitioner's name, date of birth, current address, and for each eligible record, the case number, the date of arrest if applicable, the identity of the arresting authority if applicable, and other information as the court may require.
(C) Drug Test. The petitioner shall not be

required to attach proof that he or she has passed a drug test.
(D) Service of Petition. A copy of the petition

shall be served on the State's Attorney in open court. The petitioner shall not be required to serve a copy of the petition on any other agency.
(E) Entry of Order. The presiding trial judge

shall enter an order granting or denying the petition for immediate sealing during the hearing in which it is filed. Petitions for immediate sealing shall be ruled on in the same hearing in which the final disposition of the case is entered.
(F) Hearings. The court shall hear the

petition for immediate sealing on the same day and during the same hearing in which the disposition is rendered.

http://ilga.gov/legislation/ilcs/documents/002026300K5.2.htm

Smollett's lawyers filed the required request and the judge granted it:

During the same hearing, with no opposition from prosecutors, Smollett’s lawyers requested Watkins [the presiding judge] seal all records in the case.

https://chicago.suntimes.com/entertainment/jussie-smollett-sealed-court-files-documents/

So it is clear that there was nothing improper about the sealing of the records nor was notice of said request to seal required to be given to anybody but the State Attorney's office; moreover the judge was required by law to decide the issue that day without advance notice being given to the public or any law enforcement agency. The IPBA's claims to the contrary are nonsense.

This paragraph is more rubbish:

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.

The Cook County State Attorney's Office never claimed the disposition was part of a "statutory diversion program" (which are dubious projects enriching private corporations: https://www.propublica.org/article/diversion-programs-illinois-criminal-justice-system-bounceback-correctivesolutions); their statement is clear:

"After reviewing all of the facts and circumstances of the case, including Mr. Smollet’s volunteer service in the community and agreement to forfeit his bond to the City of Chicago, we believe this outcome is a just disposition and appropriate resolution to this case.

In the last two years, the Cook County State’s Attorney’s Office has referred more than 5,700 cases for alternative prosecution. This is not a new or unusual practice. An alternative disposition does not mean that there were any problems or infirmities with the case or the evidence. We stand behind the Chicago Police Department's investigation and our decision to approve charges in this case. We did not exonerate Mr. Smollet. The charges were dropped in return for Mr. Smollet's agreement to do community service and forfeit his $10,000 bond to the City of Chicago. Without the completion of these terms, the charges would not have been dropped. This outcome was met under the same criteria that would occur for and is available to any defendant with similar circumstances."

https://www.cookcountystatesattorney.org/news/statement-dismissal-charges-jussie-smollett

The IPBA's conclusory claims that the disposition was "highly unusual" and their false claim it was supposedly done under a "diversion program" are simply not supported by the facts.

@sh76 said
A little late, but hey, I've been busy.

[quote] 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 repres ...[text shortened]... uote]

http://www.ilpba.org/announcements/7249825

No1, is the IPBA also jumping to conclusions?

And the final, hypocritical irony:

We strongly encourage our members and the public to review the National District Attorneys Associations statement on prosecutorial best practices in high profile cases.

So it turns out that what the IPBA is really complaining about is that Smollett's case wasn't treated in a different and more severe way because it was a "high profile case". Since you and others have been making unsubstantiated claims he was treated differently because he was a "celebrity", I find your endorsement of the IPBA statement completely hypocritical.

What's really going on is that Kim Foxx is an atypical "liberal" prosecutor who had previously raised the ire of conservative law and order types like police officials and prosecutors from suburban and rural districts (who make up the bulk of the IPBA); this is attempted political payback having little to do with the merits of this minor felony case.

LOL...oh my.