"Vice News" featured Haub Law professor Bennett L. Gershman in "No one knows why prosecutors dropped the Jussie Smollet case"
Tuesday was a bewildering day in what used to be the criminal case against Jussie Smollett.
The black and gay “Empire” actor was facing up to five years in prison for allegedly staging a hate crime against him. Smollett told police that two masked men approached him on a Chicago street one night in late January, screamed “MAGA Country” and other racial and homophobic slurs, beat him, poured bleach on him, and put a noose around his neck. But Chicago police later said he’d paid his alleged assailants, and they arrested the actor on charges of staging the whole attack.
Less than five weeks later, and seemingly out of nowhere, state prosecutors dropped all 16 charges against Smollett on Tuesday, without offering any legal explanation.
Afterward, Smollett gave a heartfelt press conference in which he maintained his innocence. Hours later, Chicago officials seethed, in their own press conference, about the lack of transparency surrounding the decision to drop his charges.
“I’ve never seen a case like this,” said Bennett L. Gershman, a former prosecutor at the Manhattan District Attorney’s Office and a national expert in prosecutorial misconduct. “Where the prosecutor throws in the towel and says, ‘Forget about it,’ without explaining why.”
In a statement Tuesday, the Cook County state’s attorney’s office said that its prosecutors had reviewed “all of the facts and circumstances of the case,” including Smollett’s record of community service and his agreement to forfeit his $10,000 bond payment. “We believe this is a just and appropriate resolution to the case,” the office said of dropping the charges.
Assistant State Attorney Joe Magats, who took over the case after State Attorney Kimberly Foxx recused herself, told news outlets that his office had no problems with the police investigation or with the evidence that led a grand jury to indict Smollett. “We didn’t exonerate him,” Magats said. “Here’s the thing: We work to prioritize violent crime and the drivers of violent crime. Public safety is our number one priority. I don’t see Jussie Smollett as a threat to public safety.”
But the state attorney’s office apparently hadn’t shared those sentiments with Chicago Mayor Rahm Emanuel and Police Superintendent Eddie Johnson. The two officials said the news caught them completely off guard. Richard A. Devine, who served as the state’s attorney in Cook County from 1996 to 2008, told Time that it was “unusual” for the mayor and cops to be kept in the dark.
Smollett’s continued assertion of his innocence particularly distressed Emanuel. “There’s no sense of ownership of what he’s done,” the mayor said Tuesday. “No sense of moral responsibility, besmirching the name of the city.”
Prosecutors could have, for example, tried to secure a plea deal with Smollett and his lawyers, according to Gershman. “You plead guilty. You admit guilt, and show remorse. Say, ‘I’m so sorry, I shouldn’t have done it, it was improper,” he said. “But he’s still claiming his innocence. And prosecutors aren’t demanding any kind of admission. At all. That’s pretty weird to me.”
The brutal nature of Smollett’s alleged attack comes against a backdrop of rising hate crimes across the country, which catapulted the case to a national flashpoint for conversations about race and the Trump administration. In the days immediately following the alleged attack, Chicago police said they were struggling to locate video evidence to help them identify Smollett’s assailants, which fueled speculation, mostly on the right, that the whole story was a hoax. Weeks later, police said that Smollett paid two brothers, Olabinjo and Abimbola Osundairo, who he knew through his work on “Empire”, $3,500 to stage his attack.
Police reports, obtained via FOIA by CWB Chicago, a local network reporting on public safety, and released Wednesday, shed a little more light on the investigation: For example, one of the Osundairo brothers told police that he’d put bleach into a bottle of El Yucateco hot sauce, and poured it on Smollett. (A reporter from the New York Post located that same bottle at the scene of the alleged crime.) Chicago Police also received a warrant to search Smollett's iCloud account, which they shared with the FBI.
On Tuesday, Smollett’s lawyers said that the Osundairo brothers were Smollett’s trainers and did not deny that they had attacked him. But they said the $3,500 payment was for “nutrition and training.” In the police report, one of the brothers told detectives that he generally charges between $20 to $50 an hour and only had two clients, including Smollett. The other brother told detectives that he was training 11 people on a trial basis, for free.
The lingering confusion from Tuesday’s announcement has only exacerbated existing conspiracies that have swirled around the Smollett case from the get-go. Some right-wing pundits have argued that Smollett belongs to a vast, liberal, elitist conspiracy to malign the GOP through “hate hoaxes” and that the state’s attorney’s office acted on behalf of a long list of conservative boogeymen, including billionaire philanthropist George Soros, presidential candidate Sen. Kamala Harris, and the Obamas.
Meanwhile, leftists have asked why anyone should trust Chicago officials or police, given the city’s history of corruption and brutality (including the cover-up of the death of Laquan McDonald, a black teenager who was shot dead by Chicago police in 2014).
“This is a very unusual case which raised all sorts of clamor, and questions about the conduct of people in Chicago and whether the streets are filled with racist hate crimes: dramatic, serious issues of race and policing,” Gershman said. “I”m not saying they did the wrong thing, but I’d like to know the reasons why he [Assistant State Attorney Joe Magats] did what he did. And without that, we can speculate, and the kind of speculation here can be very damning. You want the public to understand and trust the prosecutor.”
But, Gershman added, it’s also prosecutors prerogative to offer an explanation for their decision to charge or not charge someone.
“A prosecutor doesn’t have to give an explanation. That’s part of their discretion. They can decide to charge, drop charges. And they never really have to give a reason,” Gershman said. “But when prosecutors make decisions like this, I think the public demands a clear, fuller explanation.”
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