Despite recusal, prosecutor told deputy Smollett overcharged

FILE - In this Feb. 22, 2019 file photo, Cook County State's Attorney Kim Foxx speaks at a news conference, in Chicago. Foxx has asked the county's inspector general to review how her office handled "Empire" actor Jussie Smollett's criminal case. Foxx said in a Friday, April 12, 2019 statement, that she pledges her "full cooperation" and welcome the investigation from Cook County Inspector General Patrick Blanchard. (AP Photo/Kiichiro Sato, File)

Chicago's top prosecutor injected herself into the criminal case accusing Jussie Smollett of staging a racist, anti-gay attack in January despite having recused herself, texting a deputy that the "Empire" actor had been overcharged by her own office, according to newly released texts and emails.

Cook County State's Attorney Kim Foxx and her staff also scrambled later to explain the March 26 decision to drop all criminal charges against Smollett amid an explosion of public criticism, hundreds of documents provided to The Associated Press and other media through open records requests indicate.

Foxx recused herself in February, her office explaining at the time that she had "facilitated a connection" between a Smollett family member and detectives after the relative expressed concerns about the case. Foxx has made sometimes-confusing statements since then, including that she withdrew from the case but did not formally rescue herself. Foxx nevertheless weighed in with a March 8 text to First Assistant State's Attorney Joseph Magats, who became the final decision-maker in the case.

"Sooo ...... I'm recused," she texted, with ellipses to introduce her point, "but when people accuse us of overcharging cases ... 16 counts on a class 4 becomes exhibit A."

Magats responded to his boss: "Yes. I can see where that can be seen as excessive."

Smollett had faced 16 felony counts related to making a false report that he was assaulted by two men around 2 a.m. on Jan. 29 in downtown Chicago. Investigators said he made the false report because he was unhappy with his pay on "Empire" and believed it would promote his career.

The thousand documents don't include key communications among prosecutors or with Smollett's legal team, so questions remain unanswered about whether the office succumbed to outside pressure, about the logic behind tossing the case without requiring Smollett to accept responsibility for lying, and the extent of Foxx's involvement.

Foxx's office has faced sharp criticism from some quarters, including prosecutor advocacy groups. Smollett maintains that he's told the truth all along.

In the same March 8 exchange with Magats, Foxx appears to compare the charges against Smollett to those filed against R&B singer R. Kelly in another high-profile case being handled by her office, though she does not reference Kelly by name.

"Pedophile with 4 victims 10 counts. Washed up celeb who lied to cops, 16," Foxx texted.

Kelly was indicted in February on 10 counts of aggravated sexual abuse involving three girls and one woman. Kelly denies the allegations.

Foxx has long advocated alternatives to prosecution of nonviolent crimes. In her March 8 exchange with Magats, Foxx signalled that such an approach may be appropriate in Smollett's case.

"Just because we can charge something doesn't mean we should," she texted.

Texts also show that prosecutors seemed to hope news wouldn't spread widely about the March 26 hearing at which the charges against Smollett were dropped. The office made no advanced announcement about the hearing and seemed unhappy that Smollett's attorney's leaked word of it.

"It appears as if Jussie's press person may have notified the press," prosecutor Risa Lanier said in a text to office spokespeople.

Foxx also discussed what to tell police Superintendent Eddie Johnson, who said he was blindsided by the dropping of charges.

Lanier also texted Magats as news broke about the dismissal of charges on March 26, and reporters began streaming to the courthouse, and calling and emailing the state's attorney's office contacting for comment.

"Just wish I could have anticipated the magnitude of this response and planned a bit better!" Lanier wrote.

Magats appeared to try and reassure her, saying the response wasn't something they could plan for, and adding: "It's the right decision." Lanier answered: "I agree and absolutely stand by the decision made."

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Follow Michael Tarm on Twitter at http://twitter.com/mtarm

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Check out the AP's complete coverage of the Jussie Smollett case.


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