Jussie Smollett update: Confidential report released on Foxx's handling of case

A Cook County judge signed an order Monday allowing the release of a 60-page confidential report detailing State's Attorney Kim Foxx's handling of the Jussie Smollett case.

Judge Michael P. Toomin granted the request from Special Prosecutor Dan Webb, who examined how the state’s attorney’s office handled the decision to dismiss a 16-count indictment charging the "Empire" actor with faking a hate crime attack outside his apartment in 2019.

The report was made public Monday afternoon.

Smollett was found guilty on five counts of disorderly conduct, one count for each separate time he was charged with lying to police in the days immediately after the alleged attack.


"Not only did Mr. Smollett lie to the police and wreak havoc here in the city for weeks on end for no reason whatsoever, but then he compounded the problem by lying under oath to a jury," Webb said after the verdict.


In Webb’s earlier public filings, he found Foxx and her top assistants engaged in, "substantial abuse of (their) discretion" as prosecutors. They originally claimed to have a strong case against Smollett, then suddenly dropped all charges without even asking Smollett to admit he had made up a story about then-President Donald Trump supporters lurking after midnight on a bitterly cold evening to pour bleach on him and put a small dime store noose around his neck.

In his summary, Webb said he found no criminal conduct behind the unorthodox decision to drop all charges against Smollett, with the actor forfeiting only his $10,000 bond and making no admission of guilt.

But Webb did say that Foxx and her top deputies had notable procedural errors behind the scenes, and false statements to the public, including the assertion that Smollett was treated much the same as defendants in deferred prosecution programs offered by the courts, and that the evidence against the actor was weak. 

Longtime FOX 32 Chicago legal expert Larry Yellen said the report should shed light on the case's handling by the state's attorney's office.

"The question is, ‘Why did Kim Foxx reach the decisions she made?’ And were those decisions improper? Were they an abuse of her discretion? Remember all the controversy about her supposed recusal? And that she recused herself and maybe she didn't really recuse herself and was still keeping an eye on the facts in this case and how it proceeded through the system," Yellen said.

Disorderly conduct is a class 4 felony that carries a prison sentence of up to three years, but experts have said Smollett will likely be placed on probation and ordered to perform community service.

The Cook County State’s Attorney’s Office released the following statement:

"The Cook County State’s Attorney’s Office (CCSAO) remains committed to honesty and transparency. Our response remains the same as it was when the Office of the Special Prosecutor (OSP) issued its August 2020 press release. Though State’s Attorney Kim Foxx was not involved with the initial disposition of the Smollett case, she and the CCSAO remain steadfast that the office acted within its broad prosecutorial discretion. 

We respectfully disagree with the OSP’s findings of abuse of prosecutorial discretion. A prosecutor’s discretion is as broad as any in the law, and differences of opinion as to how a case was handled do not signify an abuse of discretion. Finally, it is important to emphasize that the OSP did not find any criminal activity or undue influence on the part of the State’s Attorney or the CCSAO."

The Associated Press and the Sun-Times Media Wire contributed to this report.