Some Uncomfortable Thoughts About the Smollett Prosecution

 

 

Let the jury consider their verdict,’ the King said, for about the twentieth time that day.‘

No, no!’ said the Queen. ‘Sentence first—verdict afterwards.’

 —Lewis Carroll, Alice’s Adventures in Wonderland (1865)

Dave Chapelle knows it. See <https://tinyurl.com/4j2wj259>. I know it. And you know it too. There was no hate crime; it was a hoax. And there have been many hoaxes in recent history. It is a long, long list. Smollett’s actions have (inadvertently) exposed the race hoax industry, and its regular accessories across the U.S. news-media-&-entertainment-industry complex. The media will purport to believe anything. The beast has to be fed—copy has to be sold—clicks have to be inflated—even if the ultimate result is racial violence grounded in a hoax.

But we should still take a good, hard look at the Smollett prosecution. The latter has also exposed the seedy underside of the legal world of criminal prosecution. It is not a pretty picture. The prosecutor, Kimberly M. Foxx (the State’s Attorney for Cook County, Illinois) and her office made some mistakes. They started a prosecution of Smollett, and then stopped it—with little explanation or transparency. Foxx also (arguably) made technical or administrative errors—when she informally recused herself from the Smollett case and then directed one of her subordinates to take over the case.

As a result, the matter was shifted into Judge Toomin’s court. He had discretion to appoint a special prosecutor to take over the Smollett prosecution. His exercising that discretion depended on whether Foxx and her office had violated the law controlling the administration of justice. Toomin’s decision hinged (or should have hinged) on Foxx’s conduct, not Smollett’s. A judicial resolution of Smollett’s guilt or innocence would only follow a jury’s verdict after a trial, should a newly appointed prosecutor choose to bring a prosecution. This is all basic. You don’t have to go to law school, or even watch Matlock reruns, to understand this, right? Actually, no, some people do not understand this most basic principle. And some of these people are our judges. 

In his decision, which granted the motion to appoint a special prosecutor, Judge Toomin wrote:

Rather, in perhaps the most prominent display of [Smollett’s] acting potential, Smollett conceived a fantasy that propelled him from the role of a sympathetic victim of a vicious homophobic attack to that of a charlatan who fomented a hoax the equal of any twisted television intrigue.

[Judge Michael P. Toomin, In re Appointment of Special Prosecutor (Jussie Smollett), No. 19-MR-00014 (Circuit Court of Cook County, Illinois, Criminal Division, June 21, 2019) (slip op. at 2), <https://tinyurl.com/2s37y247>.] Lewis Carroll’s Red Queen would have agreed with Judge Toomin’s sentiment: here, guilt is announced before trial. This sort of pronunciamento does not leave much residual discretion for the prosecutor. With his only having one case to sort out, the prosecutor has every reason: to bring the case to trial; to enjoy the perquisites of his temporary government appointment; and to rack up any concomitant media attention. See Morrison v. Olson, 487 U.S. 654 (1988) (Scalia, J., dissenting). And, here, a judge has already tipped his hand as to the accused’s guilt—so, a decision to prosecute looks unusually safe.

If you believe, as I do, that none of this makes any sense … that is because none of this makes any sense.

Seth

Seth Barrett Tillman, Some Uncomfortable Thoughts About the Smollett Prosecution, New Reform Club (Dec. 10, 2021, 7:19 AM), <https://reformclub.blogspot.com/2021/12/some-uncomfortable-thoughts-about.html>;