A Former Prosecutor Explains How Jussie Smollett Could Still Be Charged

Katrina Trinko / Daniel Davis /

Former prosecutor and Heritage Foundation legal expert Cully Stimson joins us to unpack what the police documents show about the Jussie Smollett case, analyze how the case was handled and the possible role a former Obama aide played, and share how there still might be one way to charge Smollett. Read the interview, posted below, or listen to it on the podcast.

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Kate Trinko: The news that “Empire” actor Jussie Smollett, accused by a grand jury of faking a hate crime, had his charges dropped has created some unusual alliances. For instance, Chicago Mayor and former Obama aide Rahm Emanuel was among the angry.

Rahm Emanuel: You cannot have because of a persons position, one set of rules apply to them, and another set of rules apply to everybody else. In another way, you’re seeing this play out in the universities, where people pay extra to get their kids a special position in universities. Now you have a person, because of their position and background, who’s getting treated in a way that nobody else would ever … get close to this type of treatment.

Trinko: Chicago Police Superintendent Eddie Johnson was also furious.

Eddie Johnson: Do I think justice was served? No. What do I think justice is? I think this city is still owed an apology, and let me digress one moment. … I’ve been a cop now for about 31 years. When I came on this job, I came on with my honor, my integrity, my reputation. If someone accused me of doing anything that would circumvent that, then I would want my day in court, period, to clear my name.

I’ve heard that they wanted their day in court with TV cameras, so America could know the truth. But no, they chose to hide behind secrecy and broker a deal to circumvent the judicial system. My job as a police officer is to investigate an incident, gather the evidence, gather the facts, and present them to the state’s attorney.

That’s what we did, I stand behind the detective’s investigation.

Trinko: And David Axelrod, a former top adviser to President Obama tweeted:

Unless some better explanation surfaces, here’s the lesson of this weird turn in the Smollett case: You can contrive a hate crime, make it a national news, get caught and—if you are a well-connected celebrity—get off for $10K and have your record expunged and files sealed.

Joining us today to discuss is Cully Stimson, a senior legal fellow at The Heritage Foundation. Cully is also an experienced prosecutor, having worked at the local, state, and federal levels, where he concentrated on violent crime such as homicide, sexual assault, and domestic violence. So, Cully, what did you think about this charge being dropped?

Cully Stimson: It’s bizarre, frankly. I am even in a more bizarre position when I agree with David Axelrod. Every word he said is true. This is the sweetheart deal of the century. This is not a “who done it,” he did it. And the fact that he can claim he didn’t do it—which he has a First Amendment right, he can do that—shows you how stinky this plea deal was, because he should have either gone to trial or been forced to plead guilty.

Daniel Davis: We saw recently that the police, following this announcement, released files on the investigation. How do you respond to those files and information contained there?

Stimson: I’ve read thousands of police reports. Naturally, I read this one—at least the two bits that have been released so far, there are apparently more. They lay out a very thorough dispassionate investigation, one that they should be proud of, and they are proud of.

And it points to one person, and one person alone, Jussie Smollett. That he orchestrated this scheme; that he paid with a personal check of $3,500, check No. 1603 from his bank account; that he’s caught on video. This is not a tough one. This is not a “who done it.”

This is clearly one person who did this. And why the state’s attorney’s office would give him this sweetheart deal stinks to high heaven.

Trinko: So about the deal, a lot of people are especially calling out the fact that he didn’t even need to apologize or admit guilt. Obviously, you, as a former prosecutor, know, not all cases go to trial. Is there any way to look at this where it makes sense that this one didn’t and this was the deal they gave?

Stimson: Most cases don’t go to trial, otherwise the criminal justice system would come to a grinding halt. Ninety-five percent of cases get plead out. This was going to plea out one way or the other, because again, the defense attorney … and I’ve been a defense attorney. The first thing I would have said to this young man after I saw the evidence is, “Dude, you’re guilty, and we’ve got to make this thing go away.”

So I expected this to go away, just not this way. And so, am I surprised it went this way? Yeah. Typically an apology is not part of a plea deal. But a guilty finding is, or a guilty plea is. If you look at the original indictments, there are, I think, 16 or 17 charges that came out of the grand jury. I think it was overcharged, frankly.

It’s basically the same charge, four different times. Basically talking to four different cops about the same thing. Eventually it was going to get bargained down. He orchestrated a hoax, it was pathetic. It could have caused race riots, it could have caused all sorts of problems, the police did a very thorough job investigating it.

So the only question was, how is the case going to end up? And here it was going to end up, should have ended up, in a finding of guilt. Either accepting guilt himself or being found guilty at the hand of a judge or a jury, but that’s not what happened.

Davis: We do know a little bit about what happened behind closed doors. We know that a former Obama aide, Tina Tchen, texted the Cook County State’s Attorney Kim Foxx during the beginning of this investigation. And she texted, quote, “I wanted to give you a call on behalf of Jussie Smollett and family who I know. They have concerns about the investigation,” end quote.

After that, the text message box asks the police to transfer the case to the FBI. What does that suggest to you? Does she need to be investigated for her role in this?

Stimson: Well, that alone suggests that she did the right thing. That she was attempting to recuse herself from the case. Because remember at the time that text happened, as I understand it, he was still considered a victim.

Trinko: That’s what she said, yeah.

Stimson: Not the defendant, right? And so, if she, the prosecutor, was getting information, positive information about a potential victim, that’s pretty normal. When you’re a prosecutor, you’re going to get information about victims of crimes, good and bad. If it’s bad, you’re going to have to turn it over to the defense because it’s potentially exculpatory.

I think we don’t know the rest of the story. What involvement, if any, did she have in the case? You see in these police reports numerous instances soon after the investigation started where the defense attorneys then requested meetings with the assistance state attorneys. Those are the line prosecutors handling the case.

And you see all the sudden, and you remember from the news, that right before those two dudes who helped beat him up at his request were going to be put in the grand jury, that all of a sudden their appearance before the grand jury was delayed because the defense attorneys were asking for a meeting with the prosecutor.

So, we don’t know—by the way, that’s very normal. Defense attorneys and prosecutors meet all day every day, that’s their job. So there’s nothing untoward about that. There’s nothing untoward about delaying an appearance before a grand jury, it happened today in grand juries all around the country.

The question is, how did the prosecution come to realize that they would seal the record? That’s bizarre. Why would they agree to that? Then why would they nol pross the case, which essentially means they’re not going to move forward? Their explanation is that this is a resource issue, it’s essentially a serious misdemeanor.

He already agreed to forfeit his $10,000 bond, that’s essentially a fine now, and he’s already done community service. That may all be true.

Trinko: Also, we should note the community service was for Jesse Jackson, and I believe 18 hours.

Stimson: Right, so that’s a drop in the bucket. Usually we’re talking 2, 3, 400 hours of community service that actually helps the community, right? That’s why it’s called community service, not hanging out with my buddy, and have him gun deck the record and say he was here for 16 hours listening to music, or whatever they were actually doing.

So this was a sweetheart deal. The lack of transparency is disturbing. The lack of coordinating, or at least giving the police the courtesy of a heads up that a plea was in the works, further puts tension between the state’s attorney’s office and the police force, which is not helpful.

Trinko: As I believe we’ve said, Kim Foxx, the prosecutor, did recuse herself from this case when it became evident that he was going to be charged, not just the victim.

A Chicago police union, the Fraternal Order of Police, issued a statement saying, quote, “Since Kimberly Foxx has taken office, she has transformed the prosecutors office to a political arm of the anti-police movement. We renew our call for a federal investigation of her role in this case, and expect the media to conduct a thorough investigation.”

Should she be investigated?

Stimson: Well, they think so.

Trinko: What do you think?

Stimson: I don’t have enough facts. I know that there are rare instances where a person who was anti-prosecution ends up as the elected prosecutor. And they take a very dim view of going aggressively after certain types of cases. It’s hard not to go after murders, it’s hard not to go after child sexual abuse and child abuse cases, elder abuse-type cases.

But here, if what they say is true, and I have no independent way of knowing that, then they have every right to demand an investigation.

There’s a nerdy legal point, too, and that is that if she recused herself—which was proper for her to do so—if it turns out that she then reasserted herself into the case, after walling herself off from the case, there may be an instance, may—and I don’t know what the facts are—where somebody could complain to the Illinois State Bar that she violated her ethical duties under the bar ethics rules.

Remember, a prosecutor’s job is not to convict. A prosecutor’s job is to do justice. So you have a higher duty than any other attorney, and you should because you can deprive people of their most important right, which is their liberty interest.

Davis: Obviously, there’s a lot of pent-up will to somehow find a way to punish Jussie Smollett for what appeared to be a faked hate crime. We heard that from the mayor of Chicago, from the police chief. Do you think there’s a chance that federal prosecutors will now take up this case against him?

Stimson: Not this particular case because—in my opinion, and in the police commissioner’s opinion, and in most other people’s opinion—what he did in Chicago at 2 a.m. at night, if anything, is a state law crime. Now, I could see creative prosecutors on the federal level, where I used to work as well, think that perhaps this somehow triggers a federal crime.

I think more likely, though, I think this case is over. I think more likely, if the feds are going to get involved, it will be the activity that took place before this, and that’s the mailing of the letter through the U.S. Postal Service, which invokes federal law.

The letter, remember, is alleged to have contained white powder. It was sent to Fox Studios, I believe, in California, threatening Jussie. Now, whoever did that could be under the microscope by the feds. And if it’s Jussie Smollett who sent it to Fox threatening himself to draw attention to himself, he could get brought into another investigation, and this would be a federal investigation.

So look for them to be testing the letter for DNA. Look for them to look for latent fingerprints. Look for surveillance of him, or other people mailing the letter on his behalf. Look for emails, look for his bank account. A search warrant was done of his apartment, I think, according to the police report. So maybe there’s a white substance that is exactly the same white substance that was found in the letter.

Whether it’s talcum powder, it was not toxic. It was something inert like talcum powder or something like that, baking soda or something. But, if the feds determine who did that, and if it’s Jussie Smollett, then he’s not out of legal jeopardy.

Trinko: Would you be concerned at all that him getting off like this could lead to copycat crimes, or more hate crime hoaxes?

Stimson: It’s a good question. I think you’re always concerned just as a citizen, not necessarily a former prosecutor or somebody involved in the criminal justice system, that when a case draws national attention, whatever the person is alleged to have done, that other people may copycat it.

For example, we know that in some of the horrible cases where mothers have drowned their children or murdered their children, future cases happen where mothers did the same thing, and they talked about the previous horrible incident where a mother did that.

Will we see a copycat where a knucklehead like this guy who wants to draw attention to himself, or herself, creates a fake hate crime? I certainly hope not. Is it a possible? Yeah, it’s possible.

Davis: Cully Stimson, thanks so much for being in and discussing.

Stimson: Always a pleasure.