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/ 68
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CRIMINAL DIVISION
IN RE APPOINTMENT OF SPECIAL PROSECUTOR No. 19 MR 00014
‘The Honorable
Michael P. Toomin
ORDER
1. On August 23, 2019, in the above-captioned matter, the Court appointed Dan K.
Webb to serve as Special Prosecutor (“Appointment Order”) relating to People of the State of
Mlinois v. Jussie Smollett, No. 19 CR.0310401. The Appointment Order contained two directives
to the Special Prosecutor: (1) “if reasonable grounds exist to further prosecute [Jussie] Smollett,
in the interest of justice the special prosecutor may take such action as may be appropriate to
effectuate that result” (“First Directive”); and (2) “to conduct an independent investigation of the
actions of any person or office involved in all aspects of the case entitled the People of the State
Of llinois v. Jussie Smollett, No. 19 CR 0310401,” and “in the event the investigation establishes
‘easonable grounds to believe that any other criminal offenses were committed in the eourse of ie
Smollett matter, [to] commence the prosecution of any crime as may be suspected” (“‘Secdnd
Directive”),
2, With respect to the First Directive, on February 11, 2020, a Special Grand Juiji
returned a true bill and the OSP filed an indictment against Mr. Smollett charging him with si counts of disorderly conduct, namely for making false police reports in violation of 720 TLCS
5/26-1(a)(4). See People of the State of Mlinois v. Jussie Smollett, Case No. 20 GR 03050-01.
3. With respect to the Second Directive, on August 17, 2020, pursuant to the
Appointment Order, the Special Prosecutor confidentially provided the Court, ina sealed envelope
delivered to the Court’s chambers, a report entitled The Office of the Special Prosecutor's
Summary ofits Final Conclusions, Supporting Findings and Evidence Relating to the Cook County
State's Attorney's Office's and the Chicago Police Department's Involvement in the Initial
Smollett Case (the “OSP’s Summary Report”), attached hereto as Exhibit A.
4. Subsequently, the OSP’s prosecution of Mr. Smollett in Case No, 20 CR 03050-01
under the First Directive continued before the Honorable Judge James B. Linn. A jury trial
commenced on November 29, 2021, and after seven days of testimony and argument, on December
9, 2021, a jury returned a guilty verdict against Mr. Smollett on five of six counts of disorderly
conduct in violation of 720 ILCS 5/26-1(a)(4).
5. The trial of Mr. Smollett being complete, the Special Prosecutor has filed a “Motion
to Release the Special Prosecutor's Summary Report Containing Grand Jury Material in the
Interests of Justice” asking this Court to find that the public release of the OSP's Summary Report,
and the grand jury material contained therein, is “in the interests of justice,” pursuant to 725 LCS
5/112-6(6)(3).
6. The Special Prosecutor's Motion asking for the public release of the OSP's
Summary Report explained that the request in the Motion is “narrowly tailored to the release of
only the OSP’s Summary Report.”
7. Having considered the Special Prosecutor's Motion, and the reasons set forth
therein, the Court finds that the OSP has demonstrated a “‘particularized need” for public disclosure of the OSP’s Summary Repozt, consistent with Board of Education v, Verisario, 143 I. App. 3d
1000 2nd Dist. 1986), in that the material it seeks to release is needed to avoid a possible injustice
in another judicial proceeding, the need for disclosure is greater than the need for continued
secrecy, and that its request is structured to cover only material so needed,
8 Having determined that the OSP has demonstrated @ particularized need for
disclosure, the Court finds that publicly releasing the OSP's Summary Report, entitled The Office
of the Special Prosecutor's Summary of its Final Conclusions, Supporting Findings and Evidence
Relating to the Cook County State's Attorney's Office’s and the Chicago Police Department's
Involvement in the Initial Smollett Case, and the grand jury material contained therein, is “in the
interest of justice” pursuant to 725 ILCS 5/112-6(¢)(3).
9. The Court further finds that neither the act of suimitting the Summary Report to
the Court, nor the public release of the Report, constitutes a waiver of any privilege, exemption,
or protection related to the OSP’s investigation, the OSP’s Summary Report, or the materials and
information gathered by the OSP or the Special Grand Jury.
10. IT IS HEREBY ORDERED that the Special Prosecutor’s Motion to Release the
Special Prosecutor's Summary Report Containing Grand Jury Material in the Interests of Justice
is granted. This Order is limited to the release of the OSP’s Summaty Report and the grand jury
‘material contained therein, end not any other grand jury material gathered by or possessed by the
ose.
11, FL IS HEREBY ORDERED that the seal placed on the OSP"s Summary Report
attached hereto as Exhibit A shall be lifted to enable public release, 12, ITIS HEREBY ORDERED that the Special Prosecutor is directed to provide the
OSP's Summary Report to the Cook County Board of Commissioners, inluding County Board
Pregiiyy PA EDkwinkle.
2
pec 20 2 cc,
rg i wren, LOLA A am
Michael P. Toomin,
Judge of the Circuit Court of Cook County
DATE: (Qe. 2e 22, EXHIBIT A THE OFFICE OF THE SPECIAL PROSECUTOR’S
SUMMARY OF ITS FINAL CONCLUSIONS,
SUPPORTING FINDINGS AND EVIDENCE RELATING TO
THE COOK COUNTY STATE’S ATTORNEY'S OFFICE’S
AND THE CHICAGO POLICE DEPARTMENT’S
INVOLVEMENT IN THE INITIAL SMOLLETT CASE
THE INITIAL SMOLLETT CASE
(SECOND JUDGE TOOMIN DIRECTIVE
FROM HIS AUGUST 23, 2019 COURT ORDER)
Special Prosecutor Dan K. Webb
Dated: August 17, 2020 TABLE OF CONTENTS
INTRODUCTION...
MAJOR CONCLUSIONS AND FINDINGS OF THIS SUMMARY REPORT...
FACTUAL BACKGROUND......
OVERVIEW OF THE OSP’S INVESTIGATION OF THE CCSAO.
Investigative Steps Regarding the Investigation of the CCSAO......
Interviews Conducted ...
Documents and Evidence Reviewed.
DISCUSSION OF THE EVIDENCE THAT SUPPORTS THE FIVE FINAL
CONCLUSIONS AND SUPPORTING FINDINGS RELATING TO THE
CONDUCT OF THE COSAO IN THE INITIAL SMOLLETT CASE
1. CONCLUSION #1: THE OSP DID DEVELOP EVIDENCE THAT
ESTABLISHES SUBSTANTIAL ABUSES OF DISCRETION AND
OPERATIONAL FAILURES BY THE CCSAO IN PROSECUTING AND
RESOLVING THE INITIAL SMOLLETT CASE
A. _ FIRST FINDING OF ABUSE OF DISCRETION: The CCSAO’s Process
and Decision-Making for Resolving the Initial Smollett Case Were a
Substantial Abuse of Discretion and Represented a Major Failure of the
Operations of the CCSAO ....
B. SECOND FINDING OF ABUSE OF DISCRETION: The CCSAO
Engaged in a Substantial Abuse of Discretion and Breached Its
Obligations of Honesty and Transparency by Making False and/or
Misleading Statements to the Public Regarding the Nature and Reason for
the Dismissal of the Initial Smollett Ca8C....e:sssienseeserene
1. False and/or Misleading Statement about the Dismissal #1; The
CCSAO Mischaracterized the Resolution of the Initial Smollett
Case as Similar to Thousands of Other Cases
17
i, It Was Not Accurate to Represent that Mr. Smollett’s Case
‘Was Similar to the 5,700 Cases Referenced Because He
Was Not Referred to a Diversion Program... IL
m,
Vv.
i, The Disinissal Press Statement Represented Mr. Smollett’s
Resolution as Being Similar to Thousands of Other Cases
‘When It Had Not and Could Not Identify Similar Cases...
2. False and/or Misleading Statement about the Dismissal #2: The
CCSAO Falsely Represented to the Public that $10,000 Was the
Most Mr. Smollett Could Have Been Ordered to Pay in Restitution
Under the Law... erential
3. False anc/or Misleading Statement about the Dismissal #3: The
CCSAO Falsely Represented to the Public that Mr. Smollett Had
No Criminal Background at the Time His Case was Dismissed .
4. False and/or Misleading Statement about the Dismissal #4; State's
Attomey Foxx Pivoted Her Position and Falsely Represented that
the CCSAO Dismissed the Case Due to Evidentiary Issues.......
C. THIRD FINDING OF ABUSE OF DISCRETION: The CCSAO Engaged
in a Substantial Abuse of Discretion and Breached Its Obligations of
Honesty and Transparency By Making False and/or Misleading
Statements Regarding State's Attomey Fox's Recusal to the Publi
so 24
D. FOURTH FINDING OF ABUSE OF DISCRETION: The CCSAO
Engaged in a Substantial Abuse of Discretion and Breached its
Obligations of Honesty and Transparency When State's Attomey Foxx
Made False and/or Misleading Statements to the Public that She Stopped
Communicating with Jumee Smollett, Mr. Smollett's Sister, After State's
Attorney Foxx Had Become Aware that Mr, Smollett Had Become a
Subject of the Investigation
CONCLUSION #2: THE OSP DID DEVELOP EVIDENCE THAT MAY RISE
TO THE LEVEL OF A VIOLATION OF LEGAL ETHICS BY STATE'S
ATTORNEY FOXX AND CCSAO LAWYERS RELATING TO FALSE
AND/OR MISLEADING PUBLIC STATEMENTS MADE ABOUT THE
PROSECUTION OR RESOLUTION OF THE INITIAL SMOLLETT CASE.
1 28
CONCLUSION #3: WHILE THE OSP DID NOT DEVELOP EVIDENCE
SHOWING STATE’S ATTORNEY FOXX WAS INVOLVED IN DECISION-
MAKING ON THE INITIAL SMOLLETT CASE AFTER SHE WAS
RECUSED, THE OSP DID DEVELOP EVIDENCE THAT SHE WAS
PROVIDED WITH FREQUENT UPDATES ABOUT THE INITIAL
SMOLLETT CASE AFTER HER RECUSAL.
CONCLUSION #4: THE OSP DID NOTDEVELOP EVIDENCE THAT
WOULD SUPPORT ANY CRIMINAL CHARGES AGAINST STATE'S
ATTORNEY FOXX OR ANY INDIVIDUAL WORKING AT THE CCSAO ..
32 OVERVIEW OF THE OSP’S INVESTIGATION OF THE CPD.
CONCLUSION #5: THE OSP DID NOT DEVELOP EVIDENCE OF
IMPROPER INFLUENCE BY ANY OUTSIDE THIRD PARTIES IN THE
DECISION-MAKING BY THE CCSAO IN THE INITIAL SMOLLETT CASE.
A. State’s Attomey Foxx’s Communications with Sherrilyn Hfill.....
B. State’s Attomey Foxx’s Communications with Tina Tchen.....
C. State's Attomey Fox's Communications with Juree Smollet..
D.
State’s Attorney Foxx’s Discussions with Superintendent Eddie Johnson
Regarding Referring the Case to the FBI...
Investigative Steps Regarding the Investigation of the CPD...
VI. DISCUSSION OF THE OSP’S THREE FINAL CONCLUSIONS AND
SUPPORTING FINDINGS RELATING TO THE CONDUCT OF CPD IN THE
INITIAL SMOLLETT CASE. vseescssssenneose ee
A. Criminal Statutes Considered...
B. CPD Policy Concerning Communications with Media...
C. Identifying Alleged “Leaks”...
1 lleged “Leaks” Identified by Witnesses the OSP Interviewed.
2. Alleged False Media Reports Identified by Mr. Smollett During the
CPD Investigation... . :
3. Media Reports Referencing Law Enforcement Investigative
Information Attributed to an Anonymous Law Enforcement Source,
D. _ OSP Unable to Identify the CPD Sources of Media “Leaks".....
E, The OSP’s Investigation of CPD’s Response to Alleged “Leaks”...
F. The OSP’s Discussions Regarding the Individual Who Accessed
Investigation Materials Without Authorization .... i
G. _ Reporters Are Protected from Disclosing Their Sources Under Illinois
Law... ae eee
CONCLUSION...
iit
33,
138
ve AD
oe AD
43
wo 45
47
57
on 59 INTRODUCTION
Dan K. Webb, Special Prosecutor for Cook County, announced today that the Office of the
Special Prosecutor (“OSP”) has completed its investigative assignment under Cook County Circuit
Court Judge Michael P. Toomin’s “Second Directive” to the OSP to determine whether any person
or office involved in People of the State of Illinois v. Jussie Smollett (No, 19 CR 0310401) (“the
Initial Smollett Case”) engaged in wrongdoing. In connection with this Second Directive from
Judge Toomin, the OSP has investigated the conduct of the Cook County State's Atlomey's Office
(CCSAO”) and the Chicago Police Department (“CPD”), as well as individuals working in those
offices,
‘The OSP’s investigation, which was conducted in conjunction with a Special Grand Jury,
began on August 23, 2019, when Judge Toomin appointed Mr. Webb as Special Prosecutor. Judge
Toomin directed Mr. Webb to conduct an independent investigation to determine the following:
(1) whether Jussie Smollett should be further prosecuted for the alleged false reports he made to
CPD officers (“First Directive”), and (2) whether any person or office involved in the Initial
Smollett Case engaged in wrongdoing (“Second Directive”), Mr, Webb’s appointment as Special
Prosecutor followed a decision by Judge Toomin on June 21, 2019 that a Special Prosecutor should
be appointed in connection with the Initial Smollett Case in order to “restore the public’s
confidence in the integrity of our criminal justice system.”
In connection with Judge Toomin’s First Directive to determine whether Jussie Smollett
should be further prosecuted, the OSP ultimately requested, on February 11, 2020, that the Special
Grand Jury indict Mr. Smollett, and the grand jury retumed a true bill. The OSP then filed a six-
count indictment charging Mr. Smollett with making four separate false reports to CPD officers
related to his false claims that he was the victim of a hate crime, knowing that he was not the victim
ofacrime. The further prosecution of Mr. Smollett is ongoing, and will not be concluded until a
final disposition of the indictment charges is reached as the result of a jury trial. As of the date of
this Report, Mr. Smollett’s trial date has not yet been set by the court.
In connection with Judge Toomin’s Second Directive to determine whether any person or
office involved in the Initial Smollett Case engaged in wrongdoing, the OSP has completed a
‘thorough investigation, which included conducting 53 interviews, issuing more than 50 subpoenas
and/or document requests, and collecting more than 120,000 pages of documents (or, more than
26,000 documents), as well as text message data and audio recordings. The OSP has prepared this,
detailed and comprehensive report, entitled, The Office of the Special Prosecutor's Summary of its
Final Conclusions, Supporting Findings and Evidence Relating to the Cook County State's
Aitorney's Office's and the Chicago Police Department's Involvement in the Initial Smollett Case
(‘Summary Report”), that sets forth the major conclusions and findings from its investigation into
the Second Directive, and discusses the evidence that relates to each of those major conclusions
and findings,
IR CONCLUSIONS AND FINDINGS OF TI
SUMMARY REPORT
After the CCSAO dismissed the Initial Smollett Case on terms that many believed were
very favorable to Mr. Smollett, there was speculation in the media regarding whether something
illegal or improper had gone on behind the scenes at the CCSAO to allow Mr. Smollett to achieve
1 the particular resolution he received. Among other things, there was public speculation that Cook
County State's Attorney Kimberly M. Foxx may have been influenced in ae improper manner by
Frveethaaneoonle who reached out to her to discuss the Initial Smollett Case, Thus, as att ofits
investigation, the OSP thoroughly investigated and evaluated whether State’s Attomey Foxx or
However, as a result of this investigation, the OSP did develop evidence that establishes
substantial abuses of discretion and operational failures by the CCSAO in prosecuting and
resolving the Initial Smollett Case,
As set forth in this Summary Report, the OSP has reached five (5) final conclusions relating
‘o the conduct of the CCSAO and three (3) final conclusions relating to the conduct of the CPD in
the Initial Smollett Case. First, as to the CCSAO, the following are the OSP's five (5) major final
conclusions;
(2) The OSP did develop evidence that establishes substantial abuses of discretion and
eperational failures by the CCSAO in prosecuting and resolving the Initial Smollett
Case, Specifically, the OSP concluded:
* The CCSAO's process and decision-making for resolving the Initial Smollett
Case were a substantial abuse of discretion and ropresented major failure of
the operations of the CCSAQ;
* The CCSAO engaged in a substantial abuse of discretion and breached its
cbtigations of honesty and transparency by making false and/or misleading
Statements to the public regarding the nature and reasons for the dismiseal of
the Initial Smoilett Case;
* The CCSAO engaged in a substantial abuse of discretion and breached its
obligations of honesty and transparency by making false and/or misleading
statements regarding State’s Attomey Foxx’s recusal to the public: and
* The CCSAO engaged in a substantial abuse of discretion and breached its
obligations of honesty and transparency when State's Attomey Foxx made false
and/or misleading statements to the public that she stopped communicating with
Juruce Smollet, Mr. Smollet’s sister, after State's Attorney Foxx had become
aware that Mr, Stmollett had become a subject of the investigation.
@) The OSP did develop evidence that may rise to the level of a violation of legal
cthics by State's Attomey Fosx and the CCSAO lawyers relating to false anaie
2 comply with applicable reporting obligations as required by the Illinois Rules of
Professional Conduct (see IRPC Rules 8.3(a) and 8.4(¢)). Based on these reporting
obligations, once able under Illinois law, the OSP will submit this report to
the Illinois Attorney Registration & Disciplinary Commission so that it can do the
appropriate review to determine if any ethical violations occurred;
(3) While the OSP did not develop evidence showing State’s Attorney Foxx was
involved in decision-making on the Initial Smollett Case after she was recused, the OSP
did develop evidence that she was provided with frequent updates about the Initial
Smollett Case after her recusal;
(@) The OSP did not develop evidence that would support any criminal charges against
State's Attorney Foxx or any individual working at the CCSAO; and
(8) The OSP did not develop evidence of improper influence by any outside third
parties in the decision-making by the CCSAO in the Initial Smollett Case.
Second, as far as the CPD, the OSP has reached the following three (3) major final
conclusions:
(1) The OSP did not develop evidence that would support any criminal charges against
any individual working at the CPD;
(2) The OSP did conclude that the majority of CPD media communications during the
Smollett CPD investigation were authorized communications in accordance with
CPD’s written policies; and
(3) The OSP did conclude that there were media reports that contained unauthorized
“leaks” of police investigative information by CPD personnel that were in violation of
CPD’s written policies. However, for reasons set forth in this Summary Report, the
OSP was unable to identify the anonymous alleged CPD source(s) of such “leaks,”
FACTUAL BACKGROUND,
On January 22, 2019, it was reported to CPD that Mr. Smollett received a letter sent to the
studio where the show ‘Empire’ is filmed, containing threatening language and drawings and laced
with a small amount of a white powdery substance, ‘The FBI initiated an investigation into the
source of the threatening letter. The FBI investigation remains pending,
On January 29, 2019, Mr. Smollett reported to CPD that two unknown assailants wearing
masks had attacked him at around 2:00 am., near 340 E. North Water Street in Chicago. Mr.
Smollett reported that the men attacked him physically, used racial and homophobic slurs, placed
rope fashioned like 2 noose around his neck, and poured bleach on him. Mr, Smolleit also
reported that one of the men yelled, “This is MAGA country,” an apparent reference to a slogan
popularized by President Donald J. Trump. CPD launched an investigation and the Smollett case quickly gamered global media
attention, Abimbola and Olabinjo Osundairo were suspected to be involved in the attack and were
taken into custody on February 13, 2019. While in custody, Abimbola and Olabinjo Osundairo
eventually revealed to CPD they had participated in a staged hate crime attack that was planned
and directed by Mr, Smollett.
While CPD’s investigation was ongoing, on February 9, 2019, State’s Attorney Foxx
decided she would recuse herself from the matter and any subsequent case, and that First Assistant
State's Attomey Joseph Magats would serve as “Acting State’s Attorney” for the matter.
On February 20, 2019, the CCSAO charged Mr. Smolieti, via a complaint, with felony
disorderly conduct, namely making a false police report in connection with his plan to report a
hhate crime that was a hoax. Mr. Smollett was arrested the following day. On February 28, 2019,
a grand jury returned a true bill of indictment for disorderly conduct. The CCSAO filed a 16-count
indictment against Mr. Smollett on March 7, 2019. On March 14, 2019, Mr. Smollett was
arraigned and pleaded not guilty.
Yet on March 26, 2019, 19 days after the indictment was filed, the CCSAO made the
decision to resolve the charges under the following circumstances: (1) complete dismissal of the
6-count felony indictment against Mr. Smollet; (2) no requirement that Mr. Smollett plead guilty
to any criminal offense under Illinois law; (3) no requirement that Mr. Smollett admit any guilt of
his wrongdoing (in fact, following the court proceedings on March 26, 2019, Mr. Smollett publicly
Stated he was completely innocent); (4) the only punishment for Mr. Smollett was to perform 15
hours of community service that had no relationship to the charged conduct; (5) only requiring Mr.
Smollett to forfeit his $10,000 bond as restitution to the City of Chicago (a figure amounting to
less than 10% of the $130,106.15 in police overtime pay that the City alleges it paid solely due to
Mr. Smoilet’s false statements to police); and (6) no requirement that Mr. Smollett participate in
the CCSAO’s Deferred Prosecution Program (Branch 9), which would have required a one-year
period of court oversight over Mr. Smollett.
On April 5, 2019, former Judge Sheila O’Brien filed petition to appoint a special
Prosecutor relating to the Initial Smollett Case, arguing that State's Attomey Foxx’s recusal of
herself, and not the entire CCSAO, was improper. After significant briefing and argument on
Various issues, Judge Toomin granted that motion on June 21, 2019, and then specifically named
Mr. Webb as Special Prosecutor on August 23, 2019,
OVERVIEW OF THE OSP’S INVESTIGATION OF THE CCSAO
OVERVIEW OF THE OSP’S INVESTIGATION OF THE CCSAO_
Investigative Steps Regarding the Investigation of the CCSAO.
The OSP partnered with the Cook County Office of the Independent Inspector General
COIIG”) to conduct its investigation into the CCSAO in conjunetion with the Special Grand Jury.
As part of this extensive investigation, the OSP and ONG interviewed all relevant witnesses, and
collected, reviewed, and analyzed all relevant documentary evidence,
|
i Interviews Conducted |
The OSP interviewed 43 people in total in connection with its investigation into the
ccsAo,
Specifically, the OSP interviewed 33 current or former members of the CCSAO:
‘© State's Attorney Kim Foxx!
* Two CCSAO decision-makers on the Initial Smollett Case:
© First Assistant State’s Attorney Joseph Magats
© Chief Criminal Prosecutions Bureau Risa Lanier
* Other CCSAO Executive Staff members t
© Chief Deputy and Chief Ethics Officer April Perry |
© Chief of Staff and Chief Diversity Officer Jennifer Ballard-Croft
© Deputy Chief of Staff Alyson Miller
© Director of Policy Mary Zimmer
+ Members of the CCSAO Communications Team
© Director of External Affairs until April 19, 2019 Kiera Ellis
© Director of External Affairs starting June 2019 Aviva Bowen
© Chief Communications Officer Tandra Simonton
© Senior Advisor for Intergovernmental Affairs Robert Foley
* Felony Review Unit Assistant State's Attorneys
© Head of Felony Review Kimberly Ward
Former Deputy Chief Criminal Prosecutions Burest Dian Sheridan
© Felony Review Deputy Supervisor Nicholas “Nick” Trutenko
©. First Chair Felony Trial Division Liam “Bill” Reardon
© , Second Chiair Felony Trial Division Robert Mack
Felony Review Deputy Supervisor Theodore “Ted” Lagerwall
Felony Deputy Review Supervisor Laura Ayala-Gonzalez
Former Felony Trial Supervisor Enrique Abraham
Assistant State's Attorney Meredith Rudolfi
°
oc 00
i
* Grand Jury Unit Assistant State’s Attomeys
© Supervisor of Preliminary Hearings, Grand Jury, and Branch 66 until March 5,
2019, Peter “Guy” Lisuzzo
‘© Supervisor of Preliminary Hearings, Grand Jury, and Branch 66 starting March 6,
2019, James “Jim” Murphy
© Assistant State’s Attomey Mary Pat Devereux
| State's Atiomey Foxx sat for an all-day voluntary interview with the OSP. State's Attomey Foxx was placed under
‘oath for that interview pursuant to the authority of the Cook County Inspector General
5 * Victim Witnesses Assistance Unit Specialist Elizabeth Ceratini Buerger
* Supervisor of Criminal Appeals Division Alan Spellberg:
* Attorneys from the Civil Actions Bureau
© Bureau Chief Cathy McNeil Stein
©. Deputy Bureau Chief Amy Crawford
© Chief ofthe Advice, Business, and Complex Litigation Division Jessica Scheller
* Chief Data Officer Matthew Saniie
© Altemative Prosecutions Unit Assistant State's Attontiey
© Supervisor Emily Cole
© Assistant State's Attorney Becky Walters
© Branch Court Supervisor Cathy Hufford i
* Former CCSAO First Assistant State's Attomey Eric Sussman
The OSP also interviewed former CPD Superintendent Eddie Johnson in connection with
its investigation into the CCSAO.
Additionally, the OSP interviewed the following nine third-parties in connection with ity
investigation of the CCSAO:
* Christina M, “Tina” Tchen, CEO of TIME’S UP Now (formerly Michelle Obama's Chief
of Staff) |
* Sherrlyn Ifill, President and Director-Counsel of the NAACP Legal Defense and
Educational Fund, Inc,
© Jumee Smollett, Mr. Smollett’s sister
* Several attomeys ftom Riley Safer Holmes & Cancla LLP who Tepresented Mr. Smollett
in the Initial Smollett Case
© Patricia Brown Holmes i
© Ronald Safer i
© Brian O'Connor Watson
* Alexandra Sims, a consultant for State’s Attomey Foxx’s reclection campaign
* Darrell Miller, Mr. Smollett’s entertainment lawyer at Fox Rothschild
ios
* Kathleen Hill, who was an attomey employed with the City of Chicago in February 2019 I
and who worked at the CCSAO as Director of Policy, Research, and Development from
November 2016 until June 2018 Documents and Evidence Reviewed
In conjunction with the Special Grand Jury’s investigation regarding Judge Toomin’s
Sccond Directive, the OSP and OG issued more than 50 subpoenas and/or document requests
and received more than 120,000 pages of documents (or, more than 26,000 documents), as well as
text message data and audio recordings. All of the documentary evidence was carefully reviewed
and analyzed by the OSP as part of its investigative activities. Specifically:
* The OSP served document requests and a grand jury subpoena that requested very broad
Categories of relevant emails, policies, text messages, case files, and other relevant
documents and communications from the CCSAO itself.
* The OSP served 34 document requests for relevant documents, text messages, and email
communications, including from personal devices and accounts, from current and former
CCSAO employees as well as State's Attorney Foxx.
* The OSP served 14 document requests and subpoenas for relevant documents, text
messages, and email communications, including from personal devices of third parties,
including the third-party interviewees noted above and consultants working with State’s
Attomey Foxx’s campaign.
+ The OSP obtained call and text records through 25 subpoenas to phone companies.
‘Through forensic collections, the OSP obtained all text message data from State's Attomey
Foxx’s cellphones and First Assistant Magats” celiphones from January 29, 2019 through
April 30, 2019,
‘* The OSP issued subpoenas to financial institutions ‘seeking State’s Attomey Foxx's and
Friends of Foxx’s (her political campaign) financial records for the relevant period.
* The OSP obtained 20 audio recordings of interviews First Assistant Magats and State's
Attorney Foxx gave to reporters.
Due to the volume of phone records and the need to pull data from cellphones in a forensically
sound manner, the OSP engaged the assistance of the Regional Computer Forensic Lab to assist
with data collection and analysis. The OSP also gathered additional information through public
records, such as news articles and videos of television interviews given by members of the CCSAO
and Superintendent Johnson,
DISCUSSION THE EVIDENCE THAT SUPPORTS THE FIVE FINAL
CONCLUSIONS AND SUPPORTING FINDINGS RELATING TO THE CONDUCT OF
THE CCSAO IN THE INITIAL SMOLLETT CASE
Below is a summary of the OSP’s five final conclusions and supporting findings relating
to the conduct of the CCSAO, current (and now former) employees of that office, and State's
Atlomey Foxx. These conclusions and supporting findings reflect the final analysis of the OSP
based upon a diligent and careful review of the evidence. L ONCLUSION #1: THE OSP DID DEVELOP EVIDENCE T ESTABLISH)
UBSTANTIAL ABUSES OF DISCRETION AND OP! TIONAL EF.
BY THE CCSAO IN PROSECUTING AND RESOLVING THE INITIAL
SMOLLETT CASE
A. FIRST FINDING OF ABUSE OF DISCRETION: The CCSAO’s Process and
Decision-Making for Resolving the Initial Smollett Case Were a Substantial
Abuse of Diseretion and Represented a Major Failure of the Operations of the
CCSAO
As noted above, the terms of the dismissal consisted of the following: (i) complete
dismissal of the 16-count felony indictment against Mr. Smollett; (2) no requirement that Mr.
Strollet plead guilty to any criminal offense under Ilinois laws (3) no requirement that Mr.
Smollett admit any guilt of his wrongdoing (in fact, following the eowr proceedings on March 26,
2019, Me. Smollett publicly stated he was completely innocent) (4) the only punishment for Mr.
Smollett was to perform 15 hours of community service that hee no relationship to the charged
conduct; (5) only requiring Mr. Smolltt to forfeit his $10,000 bona ag restitution to the City of
Chicago (a figure amounting to tess than 10% of the $130,106.18 im police overtime pay that the
City alleges it paid solely due to Mr. Smollett’s false statements to police); and (6) no requirement
that Mr. Smollett participate in the CCSAO's Deferred Prosecuting Program (Branch 9), which
Would have required a one-year period of court oversight over Mr. Smolen
Based on the terms of the dismissal, and because Judge Toomin tasked the OSP with
conducting an investigation “to restore the public’s confidence in the integrity of our criminal
Uistice system,” the OSP carefully and thoroughly investigated. and analyzed the CCSAO's
decision-making process relating to the resolution of the Initial Siwelvts Case. After reviewing
extensive evidence, including personal and business emails and text ‘messages, and conducting 43
interviews, inchuding of the two CCSAO decision-makers on the eave sete, Smollet!’s lawyer
Who negotiated the resolution, the OSP determined that the CCSAO's process and decision-
making for resolving the Initial Smollett Case were a substantial sbiee of disoretion and
{aie PUSH Freedom store “managing sales and encouraging visitors to piston Pena gear,” providing staf? with
augzestios as ow the sles and marketing ofthe produe's [could be oehnnsea and packaged to reach a younger
demographic,” “reviewing and assessing (television studio and sociel mec production of the weekly broadcast that
Fee GeIMPACT network, lve steam and social media cutlets" and meeting ot ‘membership staff and the social
media director, pDsesented a major faiture of the operations of the CCSAO. Below is a summary of factual
findings demonstrating these failings,
First, State’s Attomey Foxx, in an interview under oath, told tie OSP that she was
surprised by and disagreed with the terms of the Smollett resolution. Specifically
* State's Attomey Foxx told the OSP that she was suprised that Mr. Smollett didnot plead
guilty to any charge.
* State's Attorney Foxx told the OSP that if Mr. Smollett was not going to be required to
Plead guilty to any crime, in the altemative, she thought he should have had to stand in
Court and admit facts of wrongdoing—which Mr. Smollett was not required to do.
* State's Attomey Foxx told the OSP that Mr. Smollett’s “community service should have
been related to the nature of the offense,” ie, filing a false police report, She stated that
relevant community service could have consisted of “working with victims of real hate
crimes, or dealing with the public in a broader way,” and further noted that “Operation
PUSH might have been too easy for him.”
* State's Attorney Foxx told the OSP she thought Mr, Smollett should have paid more than
$10,000 in restitution, assuming he had the means to do so.
* State's Attorney Foxx explained fo the OSP that she got the impression that the case was
resolved in the manner it was because “they Wanted this guy (Mr. Smollett] out of town,”
She suid the case had brought a “flury of activity” to the courthouse and “being able 19
have the case resolved would eliminate throngs of people who were coming to court.”
Therefore, she got the sense the CCSAO had wanted to move “expeditiously,” including
_ontng the community service” before the dismissal, rather than having him complete it
before a future court date (e.g. six months later) so that Mr, Smollet “could be done and
89 back home.” When asked by the OSP if she agreed that trying to get Mr. Smollett out
oF tovin due to press attention might not be the right reason fo come up with a disposition,
she suid that she agreed. She further explained, “I think the kind of negotiating, let's get
nid of that guy [Mr. Smollet] at the expense of really what his actions did to the City
shortchanged, I think, the accountability that the City deserved.”
Second, consistent with State's Attomey Foxx’s position, almost across the board, lawyers
who currently work in or previously worked in the CCSAG’s criminal division who were
interviewed by the OSP told the OSP they were “surprised” or “shocked” by at least some facet of
the dismissal terms, For example:
* Many interviewees, including Alan Spellberg (Supervisor of Criminal Appeals), April
Perry (Chief Deputy and Chief Ethics Officer), Enrique Abraham (Former Felony Trel
Supervisor), Robert Mack (Second Chair Felony Trial Division), and Nicholas Tratenko
(Felony Review Deputy Supervisor), were surprised by the speed of the dismissal. In fact,
Mr. Spellberg said that he thought the speed of dismissal was “unusual” and “ridiculous” Many interviewees, including Alan Speliberg (Supervisor of Criminal Appeals), April
Peny (Chief Deputy and Chief Ethies Officer), Ling Reardon (First Chair Felony Trial
Division), Diann Sheridan (Former Deputy Chief at ae Criminal Prosecutions Bureau),
Peter “Guy” Liswzz0 (Supervisor of Preliminary Hearings, Grand Jury, and Branch 66 until
March 5, 2019), Robert Mack (Second Chait Felony Trial Division), and Kimberly Werd
(ead of Felony Review), disagreed with the fact Mi. Smeg did not accept responsibility
and/or that he did not enter into a formal diversion program. For example, Ms, Sheridan
fold the OSP that she would have expected Mr. Smelly ‘0 “eam the privilege of a
(dismissal)” by taking certain steps, including aceepting responsibility for his actions,
Many interviewees, including Peter Lisuzzo (Supervisor of Preliminary Hearings, Grand
iy and Branch 66 until March 5, 2019), Diane Shesiden Former Deputy Chief of the
Criminal Prosecutions Bureau), Robert Mack (Second Crate Felony Trial Division), and
Farigue Abraham (Former Felony Trial Supervisor , indicated that the amount of
fommunity service seemed low. For example, Mr. Listars compared Mr. Smollett’s 15
hours of community service to the 50 hours required fog & defendant in the first-time
offender weapons program, see 730 ILCS 5/5-6.4 (€)(6), or the 30 hours for a deferred
dug prosecution, see 730 ILCS 5/5-6-3.3(c)(4),
Many interviewees, including April Perry (Chieé Deputy and Chief Ethics Officer), Laura
Ayala-Gonzalez (Felony Deputy Review Supervisor), Mary Pat Devereux (Assistant
pite’s Attomey, Grand Jury Unit), Robert Mack (Sevnd Chon Felony Trial Division),
ames Murphy (Supervisor of Preliminary Hearings, Grend Jury, and Branch 66 starting
March 6, 2019), Diann Sheridan (Former Deputy Chief of the Criminal Prosecutions
likely has the means to pay full restitution and/or that $10,000 did not seem consistent with
the CCSAO’s goal to make victims as whole ag Possible, when the defendant has the
financial means to do so, which they assumed Mr Smollett likely did.
Victina Witnesses Assistance Unit Specialist Elizabeth Carini Burger also told the OSP
she was “stunned and shocked,” in particular by how the avn was quickly advanced for
dismissal. She also said the terms of the dismmiseal wore insulting given Mr. Smollett
Ssentialy “mocked” hate erime vietims and could have caused damage to the LGBTQ
Community by falsely reporting a hate crime.
Nicholas Trutenko, Felony Review Deputy Supervisor, also told the OSP that “everything
about [the dismissal] was wrong.”
Peter Lisuzzo, Supervisor of Preliminary Hearings, Grand Jury, and Branch 66 at the time
Mr. Smollett was indicted, told the OSP it was an “abort disposition” and he had never
seen anything like it before
10 Third, when the CCSAO approved charges against Mr. Smollett on February 20, 2019 and
then filed the 16-count indictment on March 7, 2019, the CCSAO decision-makers on the Initial
Smollett Case (Mr. Magats and Ms. Lanier) believed the case was strong? Mr. Magats told the
OSP that when the CCSAO charged and then indicted Mr. Smollett, he thought the CCSAO had a
good, strong case. Mr, Magats also told the OSP that he had asked Ms. Lanier if she had any
concerns about charging the case, and she said she did not. Consistent with Mr. Magats’
recollection, Ms. Lanier told the OSP that she had thought there was sufficient evidence to meet
the CCSAO’s burden—tegally and ethically—to charge the case. She said that whether the
CCSAO could ultimately meet the reasonable doubt standard at trial was part of her thought
process when she approved charges, and she had a good-faith belief that the CCSAO could sustain
proof at trial. She told the OSP that she was not aware of anyone at the CCSAO who disagreed
with that assessment.*
Fourth, the consensus amongst the current and former CCSAO employees the OSP
interviewed was that the CCSAO typically distnisses a case without requiring an admission of guilt
cr participation in a diversion program’ (e.g., the Felony Deferred Prosecution Program) only if
the circumstances change—primarily if the CCSAO learns of new evidence such that it believes
the defendant is innocent or the CCSAO cannot meet its burden,’ For example, Diann Sheridan,
who was Deputy Chief of the Criminal Protections Bureau in early 2019, told the OSP that itis
‘unusual to dismiss a case without a change in the evidence (or else requiring some period of
supervision, such as is required by the diversion programs). Peter Lisuzzo, who was Supervisor
of Preliminary Hearings, Grand Jury, and Branch 66 when the CCSAO sought a true bill of
indictment in the Initial Smollett Case, told the OSP that there would have to be new evidence or
information to justify a dismissal like that in the Initial Smollett Case. James Murphy, who took
over Mr. Lisuzzo’s role in March 2019, similarly told the OSP that a dismissal is usually the result
of new information coming to light and that he had “never seen a case fall apart in a month,” Alan
* After State's Attomey Foxx recused herself on February 9, 2019, the two decision-makers on the Initial Smollett
‘Case wore Mr, Magats, who State's Attorney Foxx designated as “Acting State's Attorney,” and Ms. Lanier, the led
prosecutor assigned to the case.
4 Contrary to the postions MBs. Lanier end Mr, Magats have taken withthe OSP and that Mr. Magats took publicly
that the case was strong, Alyson Miller, Deputy Chief of Sta, told the OSP that both Mr. Magas and MG, Lanier old
her at some point that there were evidentiary challenges relating tothe case and she recalled them indicating these
Puported “deficiencies” were part of the reason they dismissed the case. Similarly, the Chief Communications
Officer, Tandra Simonton, told the OSP that after the dismissal, Ms. Lanier told her that thee were evidentiary issues.
According to Ms. Simonton, Mr, Magats also told her something to the effect of te “evidence against Mr. Smollet}
‘Was not as solid as it seemed.”
5 The CCSAO has certain formal diversion programs which allow an eligible defendant fo avoid a treitional
prosecution and even to potentially have the case entirely dismissed ifthe defendant successfully completes the
program's requirements, See htipsi//wvrv.cookcountystatesatiomey.org/resources/diversion-programs. It should be
noted that the OSP recognizes that the interests of justice warrant and even necessitate dismissal in certain eases,
jnchiding following the completion ofa diversion program. Additionally, nothing in this Summary Report should be
construed as the OSP evaluating or opining on the CCSAO’s efforts under Stats Attomey Foxx to increase the use
of version programs, nor asthe OSP taking a position generally on what types of cass shouldbe refered to diversion
programs or dismissed.
$ Thore are other changed circumstances that could lead the CCSAO to dismiss a case, such as ifthe CCSAO loses &
‘major motion and evidence would be excluded ot if a witness disappears or dies, which are not applicable here.
WL Spellberg, the Supervisor ofthe Criminal Appeals Division, also said that fora case to be dismissed
in the manner of the Initial Smollett Case, he would have expected there to be + change in the
evidence that was “very significant.” Additionally, former First Assistant Eric Sussman told the
OSP, referencing the concept that a case Could be dismissed without a change in the evidence:
Fifth, there is no indication that the CCSAO ot CPD identified any new evidence after
Mr. Smoliett was indicted and before the CCSAO dismissed the Initial Smollett Case thar changed
the CCSAO’s assessment of the case.
Smollett—identified to the OSP. Jat new evidence they leamed of between the time Mr. Smollett
Nas indicted and the dismissal of the indictment ‘which changed their view thatthe evidence against
Mr. Smollett was strong and the CCSAO could prove bis guilt, Specifically:
Ms Lanier told the OSP these was nothing Specific she learned that had changed her view
ofthe strength of the ease between the time of indiomen and when she said the CCSAO
made its initial resolution offer to Mr. Smollet’s counsel at arraignment on March 14,
2019,
* Peter Lisuzzo, Supervisor of Preliminary Hearings, Grand Jury, and Branch 66 at the time
the grand jury returned the true bill of indictment, told the OSP: “This was a strong case,”
and said he had no substantial concems about the case,
* Mr. Lisuzzo’s replacement in March 2019, James Murphy, said the Initial Smollett Case
has one ofthe strongest cases [he has] ever seen” an ots be “would have been happy 10
1 that case himself.” He also said he had never sean strong case fall apart within a
‘month, which woutd have been the circumstances with the Initial Smollett Case * Nicholas Trutenko, one of the Felony Review attomeys assisting CPD with the
investigation, said “[Mr. Smollett] had no wiggle room. ‘The case against him was ait
tight.”
+ Liam Reardon, the other Felony Review attorney assisting CPD, described it as a “great
case” and “solid,” noting that the feeling in the CCSAO when the case was charged was
that it was “strong.” Mr. Reardon also remarked to the OSP that even “[a] very
inexperienced third chair [ASA] could have put this case on and won.”
* The Head of Felony Review during the Initial Smollett Case, Kimberly Ward, told the OSP
that it was a “solid case.”
* A Felony Review Deputy Supervisor during the Initial Smollett Case, Theodore “Ted”
Lagerwall, told the OSP he thought it was a strong case and remarked that he thought he
“could go into a courtroom and convince a jury” based on the evidence, He also told the
OSP he was not aware of anyone within the CCSAO that disagreed with his assessment,
* The attomey who drafted the indictment, Assistant State’s Attorney Mary Pat Devereux,
told the OSP she thought that it was a “strong case” and had not heard anyone prior to
dismissal express any uncertainties or concerns about the strength of the case.
‘* Superintendent Johnson told the OSP that he was not aware of any new evidence that was
identified between charging and dismissal
Sixth, not only did the two CCSAO decision-makers—Mr. Magats’and’Ms. Lanie-—fail
to identify in their interviews with the OSP any change in the evidence, their offered explanations
of the process and factors that led to the resolution decision differed in four significant and
‘meaningfal ways:
(1) Who negotiated the terms of the resolution with Mr, Smollett’s lawyers?
Mr. Magats told the OSP that Ms. Lanier handled the negotiations of the terms of the
resolution (of which he approved). By comparison, Ms. Lanier told the OSP that Mr. Magats
handled the negotiations of the terms with Mr, Smollett’s counsel. Patricia Brown Holmes, Mr.
Smollett’s lawyer who primarily handled negotiating the resolution on Mr. Smollett’s behalf, told
‘the OSP that she had initial discussions with Mr. Magats, who then relayed her to Ms. Lanier, with
‘whom Ms. Holmes negotiated the terms of the resolution.
(2) When did Mr. Magats and Ms. Lanier begin discussing resolution terms?
Ms, Lanier told the OSP that she and Mr. Magats discussed resolution terms for the first
and only time at Mr. Smollett’s arraignment hearing on March M4th—at which time the CCSAO
first discussed a potential resolution with Mr. Smollett’s counsel. Ms. Lanier further told the OSP
she had not determined what she thought would be appropriate terms for a resolution prior to the
arraignment hearing. By comparison, Mr. Magats told the OSP that he and Ms, Lanier discussed
the terms of the dismissal prior to Mr. Smollett’s March 14, 2019 arraignment,
1B 3) Was Mr. Smollett offered the opportunity to participate in the Felony Deferred
Prosecution Program?
‘Mr. Magats told the OSP that he and Ms. Lanier jointly decided to offer Mr. Smollett the
opportunity to enter the Felony Deferred Prosecution Program (“DPP"), that they made such an
offer to Mr, Smollett, and that Mr. Smollett rejected that offer. By comparison, Ms. Lanier told
the OSP that she and Mr. Magats never discussed potentially offering Mr. Smollett entry into the
DPP and never made an offer to Mr. Smollett that he could participate in the DPP. Consistent with
Ms. Lanier’s memory, Ms. Holmes told the OSP that the CCSAO never offered Mr. Smollett the
chance to enter into the DPP. i
(4) Were the terms of the resolution of the Initial Smollett Case modeled after the DPP?
Mr. Magats told the OSP that the terms the CCSAO offered to Mr. Smollett (which he
ultimately accepted) were modeled after the DPP. To the contrary, Ms. Lanier said that she had
not modeled the terms, which she came up with at the arraignment hearing on March 14, 2019,
after the DPP,
‘Seventh, contrary to Mr. Magats’ claim to the OSP (and his statements to the media in
interviews on March 26, 2019) that the terms of Mr, Smollett’s resolution were modeled off of and
similar to the requirements of the DPP, Mr. Smollett’s resolution does not track the requirements,
of the DPP:?
‘+ The standard agreement the CCSAO uses when a defendant enters the DPP explains that
DPP diverts “selected non-violent felony defendants .., into an intensive twelve (12)
month preindictment program” and explains that “[wJhen a defendant successfully
completes this intensive yearlong program, the State's Attomey’s Office will exercise its
prosecutorial discretion and dismiss the felony charge,” yet Mr. Smollett had his case
dismissed without any period of participation in a program, let alone a year of supervision,
+ The DPP statute, 730 ILCS 5/5-6-3.3, requires the defendant to pay “full” restitution, yet
Mr. Smollett paid only $10,000, which amounts to less than 10% of the $130,106.15 in
CPD overtime pay that the City alleges it paid solely due to Mr. Smollett’s allegedly false
statements to the CPD, which arguably would have been the relevant amount of restitution
for Mr, Smollett’s charged crimes.*
* When a defendant must complete community service under the DPP (i.e, if the defendant
is not employed), the statute requires a minimum of 30 hours of community service and
7 In fact, Ms, Perry explained to the OSP that Mr. Magats told her about the terms of the dismissal the day before the