Our problems remain epistemological.

Friday, December 10, 2021

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 errorswhen 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 accuseds 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 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>; 



Fat Man said...

Smollett was just the most recent and highly visible among the literally hundreds of hate crime hoaxes. Indeed, there is an entire book about them:

"Hate Crime Hoax: How the Left is Selling a Fake Race War" by Wilfred Reilly (2019)

"In Hate Crime Hoax, Professor Wilfred Reilly examines over one hundred widely publicized incidents of so-called hate crimes that never actually happened. With a critical eye and attention to detail, Reilly debunks these fabricated incidents—many of them alleged to have happened on college campuses—and explores why so many Americans are driven to fake hate crimes. We're not experiencing an epidemic of hate crimes, Reilly concludes—but we might be experiencing an unprecedented epidemic of hate crime hoaxes."

"Wilfred Reilly is an Associate Professor of Political Science at Kentucky State University, and the author of the books "Taboo: 10 Facts You Can't Talk About,' "Hate Crime Hoax," and "The $50,000,000 Question."

Kentucky State is an HBCU.

Fat Man said...

The trial judge was a man named James Linn. I do not understand how Toomin's opinion would have prejudiced the trial other than by way of publicity, which I do not think happened. Indeed, prior to the trial, the whole affair was subject to a main steam media omerta.

As for the appointment of special prosecutors, It does not appear that this one engaged in the same level of abuse of the public fisc as have several more high profile matters, such a the Muller Russiagate fiasco where millions of dollars were spent resulting in a couple of 1001 prosecutions and one tax fraud trial, all of which were notable for their most tangential relationship to the actual subject of the investigation.

Ms. Foxx's behavior in this matter was discreditable, but, most likely, not criminal. She has made several other high profile messes that should result in her dismissal. E.g., she refused to charge anyone involved in a shot out on a south side street in daylight on the bizarre grounds that they were engaged in mutual combat.

Assistant Village Idiot said...

About one third of claimed hate crimes are hoaxes, and on college campuses it is over 50%. The trick is to notice whether it is just too perfect. Real hate crimes are jerks on the street or the subways saying "Nigger!" and just shoving someone or getting a few guys together to try and beat someone up. Just low-rent, stupid bigots, or even just sociopaths who want to pick on anyone who looks vulnerable, without regard to race, sex, sexual orientation, etc. Just someone who looks like a victim.

But when the hate crime fits the narrative too beautifully, it is usually a set-up.