In this edition, host Jonathan Amarilio is joined by Dan Webb, the special prosecutor appointed to investigate the case against actor Jussie Smollett for making false reports of a hate crime to the Chicago Police Department and the handling of the case by Cook County State’s Attorney Kim Foxx. Webb discusses his successful prosecution of Smollett and explains what ultimately lead to his conclusion that there were “substantial abuses of discretion and operational failures” by Foxx and her staff in how the case against Smollett was resolved.
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Jonathan Amarilio: Hello everyone and welcome to CBA’s At The Bar Podcast where we have unscripted conversations with our guest about legal news topics, stories and whatever else strikes our fancy. I’m your host Jon Amarilio of Taft Law and I am privileged today to be joined by Dan Webb of Winston & Strawn.
Dan is a living legend of the Chicago legal community. I could spend the whole hour listing his career achievements but here are just a couple of its highlights. As special counsel, he successfully prosecuted Admiral John Poindexter in the Iran-Contra affair. As U.S. attorney for the northern district of Illinois, he spearheaded Operation Greylord, the investigation that uncovered systemic corruption in Chicago’s judiciary. And in private practice, name a major white collar investigation of the last 40 years and odds are, Dan was in the mix.
No less than the New York Times and the Wall Street Journal have described Dan as one of the country’s most highly regarded and sought after litigators which is why I suspect he was appointed two years ago to be the special prosecutor tasked with determining whether to prosecute Actor Jussie Smollett for the fake hate crime he staged in January 2019. And relatedly, Dan was tasked with investigating the Cook County State’s Attorney’s Office which months earlier, had inexplicably decided to drop all criminal charges against Smollett arising from that fake attack amidst accusations of influence pedaling.
Since then, a conviction of Smollett has been obtained. As we speak, sentencing of Smollett is pending. And in his first public long format interview on the subject, Dan is here to discuss the case and investigation with us. Dan, welcome to At The Bar.
Dan Webb: Hi, Jonathan. I’m very glad to be here. You ask questions and I’ll answer them.
Jonathan Amarilio: Yes, I appreciate that. It’s probably a little role reversal for you there but we’ll go with it.
Dan Webb: Somewhat, yes.
Jonathan Amarilio: Dan, this is a story with a lot of moving parts but let’s start with your involvement. You’re no longer a public servant. You’ve been in private practice for years and yet, when the court in this case determined that the State’s Attorney Kim Fox and her office could not or would not properly handle the case, you’re called upon to pick up the baton. Why is that? That’s not something you often see attorneys in private practice being appointed in this capacity.
Dan Webb: John, there’s a bit of a story here in the sense that over the decades as I’ve been in private practice, because I used to be a federal prosecutor and was a special prosecutor on the federal level, there have been times over the years when I have been asked to be a special prosecutor either by the federal government or by the state government, Cook County. I think I’ve served on six different occasions on different special prosecution type matters. This is the last one.
And quite frankly, the reason I’ve done it over the decades is that I very much enjoy the private practice of law but I also, as my law firm says, I like to tilt at wind mills. I enjoy doing interesting things. I get bored practicing law quite frankly sometimes and so, when the opportunities come along on five or six occasions either from the federal government or the state government, I have responded because I enjoy doing this kind of special projects and I’ve just done it.
This time and it came around in this fashion, Judge Toomin is the state court judge here in Chicago who considered the petition as to whether to grant a special prosecutor. The special prosecutor need arose because in March of 2019, the Smollett case was resolved by the Cook County State’s Attorney’s Office , Jonathan, in a way that could only be called unfulfilling, if not, bizarre the way the case got dismissed. It was a serious, serious crime that had occurred. The Chicago Police Department had been deceived in a major way and the Cook County State’s Attorney’s Office for reasons that are really not well understood today just dismissed the case outright three weeks after they’ve indicted the case.
So, three weeks after they’ve indicted the case, they just dismissed the case. They dismissed it without any punishment, whatsoever. Smollett was not required to plead guilty to anything. All charges were dismissed. He did not have to admit any guilt. In fact, he went out in front of the court house that day and kind of gave the finger to the City of Chicago and said he hadn’t done anything wrong. That did not sit well. He was not punished in any way, he was not put on deferred prosecution in which would normally happen if — and there was no restitution. Well, there is $10,000 he forfeited a bond.
So, it was a bizarre dismissal. Judge Toomin made a decision, a special prosecutor had to be appointed. Judge Toomin told me that he believed the public’s confidence and the Cook County criminal justice system had been severely damaged by the events of Smollett and he asked me if I would agree to be a special prosecutor.
I talked to my firm about it and we made a decision we would do it and that’s how it came about.
Jonathan Amarilio: So, let’s start with the underlying crime itself, Smollett staging of the attack. What did you learn in the course of your investigation about what actually happened? Because I remember very clearly the news story when it first happened, it’s terrible hate crime that occurred in Chicago streets. A Black man being attacked supposedly by two White men, a rope being hanged around his neck, bleach being poured all over him, racial epithets being used toward him. It seemed like this absolutely horrific thing that couldn’t happen in 2021.
But then over the course of the next couple of weeks, certain facts began to emerge. What did you discover?
Dan Webb: I discovered things after the fact but what the Chicago Police Department discovered was that after Smollett had reported what clearly was viewed as a very serious hate crime directed at him as someone who was gay, African-American, a well-known actor and for him to be attacked basically downtown in the City of Chicago was just a completely unacceptable conduct. The Chicago Police Department eventually assigned 26 different police officers that worked thousands of hours over the next several weeks because they all testified at trial. They took this as a very serious allegation at a time when we are trying to get away from this type of awful conduct. It was despicable conduct that was alleged.
And the police though as they unwound things day by day over the next three weeks or so, at some point it became reasonably clear to the members of the Chicago Police Department that this was a fake hate crime and that Smollett himself had participated in the hate crime and that he had recruited two brothers that he knew and had a relationship with to fake the hate crime in order for Smollett to be able to get more attention from his Empire Studio that he worked for.
Jonathan Amarilio: It was a publicity stunt.
Dan Webb: It was. Yes, you could call it that. I mean, the evidence says that Smollett had received a hate letter through the mail in January of 2019 and that he believed that the studio, the Empire Studio where he did his acting career on, was not paying attention to the details of what happened. He wanted them to pay more attention to this hate later he had received and he thought that if he staged a hate crime in which he was attacked that his employer would pay more attention to him and he would benefit from that.
Jonathan Amarilio: Dan, do we know whether that letter, the initial letter was genuine or did he fake that as well?
Dan Webb: No. I don’t think that anyone knows the answer to that. I believe the FBI would tell you they’re still investigating this. The FBI did the investigation. They tried to determine the source of the hate note. It is my understanding without any real inside information, I don’t work for the federal government, but it’s my understanding the FBI has not been able to determine the source of the hate letter.
Jonathan Amarilio: Okay. So, I’m sure there’s plenty of it and we have limited time but walk us through some of the evidence that led to CPD and later you to the conclusion that this hate crime has been staged and wasn’t real.
Dan Webb: Here’s what happened in a nutshell. Chicago Police Department, they did a fabulous job. Sometimes they get criticized for things that have happened in the city and homicide rates, et cetera. And we’re not suggesting the police department is perfect but they were perfect in this case. This police department rose to the occasion. They did what you would want a responsible police department to do, put resources on it, get to the bottom of it. They met with Mr. Smollett on multiple occasions and they told him, “Sir, we will find out who did this to you,” and they did.
Through a lot of good investigative work, surveillance cameras, et cetera, the police department pieced together what happened. And these two Osundairo brothers we know got out of a cab on the early morning hours of January 29, 2019 and the police department traced their movements all around the area where Smollett lived, in that River North area. And the police department eventually traced these two people that got out of a cab in the early morning hours in January of 2019. They traced them back to an Uber, they traced them back to their home and they identified the people that did it.
And so, those two brothers were happened to have gone to Nigeria on a trip and when they got back to Chicago, they were arrested, taken into custody and interviewed by the Chicago Police Department. And low and behold, the police discovered not only who did it but they discovered that it was a fake and that the brothers had faked the hate crime because of Smollett’s direction.
Jonathan Amarilio: So, you have the brothers’ confession that they perpetrated the attack itself. What other evidence was it? Was there video evidence? What was out there?
Dan Webb: Basically, if you go back, the trial was not a long trial. We tried it in December of last year for about eight days during the first part of December. I put my case on and in simple terms, my evidence was I put six Chicago police officers on the stand to tell the jury the story of a responsible Police Department that got an allegation of serious wrongdoing and they thoroughly investigated it, literally went out and captured the amount of information you could have gained today in surveillance evidence would scare all of us to death. I mean, there are surveillance cameras on every business. Now, there’s residents that have doorbell security cameras. So it doesn’t matter where you go or what you do in the City of Chicago, trust me, there are surveillance cameras but it takes thousands of hours of work to piece it together.
But I showed the jury how clear it was that these brothers were recruited by Mr. Smollett to carry out the fake hate crime even down to the point of where Smollett literally did a dry run where he picked up the brothers in their Lakeview home, drove them over to the River North Area where he lived and he took him right to the spot under a staircase, kind of an out-of-the-way staircase kind of underground where he wanted the attack to take place. What Smollett didn’t realize in hindsight, once the police started their investigation through surveillance cameras, I was eventually able to show the jury that that very location of all the places in the City of Chicago, this one location, Smollett had driven around that area, circled the block five different times that day as he was showing the brothers how to carry out the hate attack, how to get away from it and run away and get away.
And so, I had police officer testimony, I had surveillance evidence and I had the testimony of the brothers that explained what happened. And then eventually, I got Smollett’s testimony because Smollett went on the witness stand and testified and I cross-examined him. So that was kind of the trial Jon.
Jonathan Amarilio: Let’s not quite go to Smollett’s testimony. I want to get there in a minute but just staying on the evidence for one more minute. It seems to me that one of the great ironies of this case, you’re just talking about how wherever you go in a major city these days there’s CCTV footage tracking you or capturing your movements. But here, Smollett thought he was positioning the fake crime in a place that would be captured by surveillance video but the camera was facing the wrong direction so he didn’t get the video that he wanted to use to promote this publicity stunt, right?
Dan Webb: That is correct. The evidence was that when he staged this, he picked the location which is literally right near his apartment building which he was familiar with. And he picked it because he pointed out to the brothers on the day of the dry run a couple days before the actual fake attack. He showed the brothers where the surveillance camera was so he knew where it was. In fact, he told the police when he later reported it that he knew where it was. What he didn’t realize is that that was a Chicago Police Department camera that they’re spread out through all over the city and it was at that location but it was pointed down the street in a different direction. So that his plan was he wanted to be recorded so that the world could see the attack of him. That’s why he arranged it at that staircase because he thought it would be recorded and it wasn’t because the camera was pointed in a different direction unbeknownst to him.
Jonathan Amarilio: Right, and there is also a video footage of the brothers I think up in Ravenswood neighborhood toward the north of the city buying supplies for the attack, the bleach and the rope, that kind of thing.
Dan Webb: We had a substantial amount of evidence. The brothers’ testimony that they carried out the hate crime pursuant to Smollett’s directions was corroborated by surveillance camera testimony but also by evidence Smollett had told them exactly how he wanted the crime carried out. He wanted the two brothers to attack him and as they approached him to attack him at this particular stairwell, he wanted them to yell out homophobic slurs that implicated Whites and Trump basically, okay. Scream out MAGA country, empire, awful words that they were told to use by Smollett and then he told them, “And I want you then to knock me to the ground.”
“Fake that you’re beating me up but give me give me a couple of decent blow so you’ll see a little evidence on my face that I got scuffed up so it looks like I really got attacked. And then I want you to put a noose around my neck so it looks like a hanging, an awful symbol of the past, and then I want you to throw bleach on me.” So, those were his directions.
So then when we found out that the brothers actually did the attack and they told us what they did, we corroborated everything they told us. What Smollett told them that he wanted all this equipment, we proved that the brothers went to a hardware store and they bought the rope. They went to a beauty store to get all the equipment, the gloves, the mask, the bleach. So we have pictures of the brothers buying the equipment at two different retail stores that corroborate the testimony of the brothers that they were operating at Smollett’s direction.
Jonathan Amarilio: So what was in it for the brothers? Why did they agree to go along with this?
Dan Webb: You know, that’s a great question. I had the brothers testify to that. Here’s what happens. It’s not that complicated. The brothers were both struggling actors. They had, particularly Abel Osundairo had become very close to Smollett because he was working at the Empire Studio as an up-and-coming stand-in, I’ll call it, very small parts in Empire, but he came to admire Smollett and he got to know Smollett and they actually became friends. They started hanging out together. They shared recreational drugs together and they became close friends.
And Abel Osundairo and his brother Ola both testified essentially, when this opportunity came up and Smollett described to them how he wanted the fake attack to occur, they both agreed to it. They both in fact went back to their apartment in Lakeview and talked about it and they decided that they wanted to be friends with Smollett. They thought if they helped Smollett do this fake attack and it helped his career, that he would help them and their acting careers. And that was nothing more complicated than that.
Smollett did pay them, gave them a check for $3,500 to carry out the attack, et cetera. However, they didn’t ask for it. They weren’t asking for any money or whatsoever. When they agreed to do it, there was no issue they were going to be paid, they were going to do it to be friends with Smollett and pursue their acting career.
Jonathan Amarilio: So you have all of this evidence which seems fairly irrefutable, at least the jury agreed with that. And what charges did you end up bringing?
Dan Webb: Smollett was charged with six counts of lying to the members of Chicago Police Department. I think it’s called a class 3 or class 4 felony. It’s a felony under Illinois Law for lying to a peace officer. And those were the six crimes. Six felony charges.
Jonathan Amarilio: So we’ve gone through a lot of the evidence that you presented at trial, what was Smollett’s defense? Was it just innocence?
Dan Webb: By the way, Smollett had every right to testify. Every defendant has a right to testify.
Jonathan Amarilio: Not always a smart idea though, right?
Dan Webb: Well, we could go into strategy about that but Smollett had good lawyers. Trust me, he had very good lawyers. And by the way, the lawyers that I respect and we interacted professionally with each other during the trial and while we had some battles in the courtroom, I have no complaints about his lawyers or anything that they did during the trial.
Now Smollett went on the stand and what he did is exactly what I had prepared for and I expected. He was aware of all the surveillance he was on. So there are things he had to admit that he did. He had to admit when he met with the brothers which look very unusual. He had to admit when he would pick the brothers up and drive him around when they’re planning out the attack, when he drove him over to do the dry run, when he picked them up at their house which is not in his neighborhood, they lived in a different neighborhood.
So, I had surveillance evidence showing a very close connection between the brothers and Smollett. I had the brothers buying materials that Smollett told them to buy. And so, I had strong evidence and Smollett basically admitted everything that he knew was on surveillance because he knew a jury would not believe him if he denied what was on surveillance and then he denied the critical act of wrongdoing. He denied that he plotted out with the brothers and he contends that he has faced a real hate attack.
Jonathan Amarilio: Okay, so let’s just break that down a little bit. Did he acknowledge that the brothers committed the attack against him? Or did he maintained that it was still two White men?
Dan Webb: That was actually one of my strongest lines to cross that I thought I would use to convince the jury he’s lying.
And that your question is right on track. He testified whatever the reasons were. He had so many different things which ways he could have gone. I understand he described the attack and he knew that there was video surveillance evidence showing that the brothers had gone to that area at 2:00 in the morning and we’re staking out the area where they’re supposed to attack him but he took the position that he knew nothing about that. He just happened, at 2:00 in the morning, he said he left his apartment after returning from a business trip and decided to go buy eggs, eggs at a Walgreens that was closed.
And I cross-examined him about his story, about how he decided at 2:00 in the morning, he just happened to go out and strolling around his neighborhood in a polar vortex. This is one of the coldest time periods in Chicago’s history. He’s out walking around his neighborhood saying he went to buy eggs at a Walgreens that by the way had never been a 24 hours Walgreens, ever. Okay? There was no reason to believe he could buy eggs at Walgreens and then he went to a Subway and then he says he just walked back to the stairwell of all the places in Chicago he could have walked to, he came to the very stairwell that the brother said he was going to be at and then the brothers attacked him. He told the jury, “I don’t know who attacked me. They were wearing dark clothing. They had face masks on. I had no idea who attacked me.”
I thought that was ridiculous. The evidence was overwhelming that through police surveillance of the brothers’ testimony, of course it was the brothers. They were right there 100 feet away waiting for him to arrive at the location and they attacked him and did it as planned and he said, “I don’t know who attacked me.” Now the reason he did that is because he had told the police earlier, one of his attackers was White. Both of the Osundairo brothers are African-American. So Smollett had a dilemma. So he decided he would solve the problem by simply telling the jury he had no idea who attacked him. And that was, I think, my strongest line of cross. And when I got to closing argument, I really melt that in closing argument that no one in this courtroom believes that it was not the brothers.
I thought maybe Smollett might say, “Well, I wasn’t sure who did it but now that I’ve seen all the surveillance evidence, now that I’ve watched this and I’ve sat in this courtroom for seven days, I’ve seen all the evidence. Yes, I now acknowledge the brothers attacked me.” Instead he said, “I still, to this day Mr. Webb, I swear to God in front of this jury, right here on the witness stand I don’t know who attacked me” and I think I was able to successfully show the jury that was ridiculous.
And by the way, one of the things that we learn as trial lawyers, if you do decide to put your client on the stand, if it doesn’t go well and if the jury concludes that your client lied, you probably could never survive that. You’ll get found guilty. And while I can’t speak for the jury here, I argued very strongly that Smollett’s testimony on critical issues like buying eggs at 2:00 in the morning in a polar vortex denying even who attacked him that nobody could ever believe that ridiculous story.
Jonathan Amarilio: I mean, those 2:00 a.m. omelet cravings can be really strong but yeah. So what else did Smollett say on the stand that you thought injured his credibility with the jury?
Dan Webb: Well I thought that his denial that he had engaged in any planning whatsoever but his admissions. I got him to admit a lot of my evidence because I knew he had to admit the surveillance evidence. One thing you learn as a trial lawyer, first get the person testifying to admit everything that helps your case, lock that down and then attack the person and I did that with Smollett. He admitted a lot of my evidence which I thought had to hurt him on. He knew that when he went on the stand he was going to have to do that but I did thoroughly melt that in front of the jury.
Jonathan Amarilio: And just for those of our audience who are not lawyers and there’s more than I would think, the strategy there is to narrow his options for coming up with excuses, stories, explanations, right?
Dan Webb: That is correct. You want him to admit as much as he has to but not just do it quickly. I slowly walked him through all my evidence, all the meetings, when they occurred, when the brothers got in the car with him. I went slow. It’s in slow motion so the jury can assimilate that information and come to enjoy it and learn it and then come after him and show that his explanation was wrong.
The other thing that I think hurt Smollett is, I cross examined him for almost an hour on the fact that he made a choice to report this as a hate crime to the Chicago Police Department. He told the Chicago Police Department, “I will cooperate with you 100%. I will tell you everything you need to know.” And then when the police began to — the police started their investigation and in one of their early interviews of Mr. Smollett, Smollett had told them that a few days before this hate attack, he had gotten a phone call on his cell phone from an anonymous caller who also threatened him and used these kind of racial slur words. So the police told Smollett, “Will you please give us your cell phone? We’ll need it for two or three hours, we’ll download it and we may be able to get leads because you want us to solve the crime.”
Jonathan Amarilio: Right.
Dan Webb: And Smollett said, “No, I won’t give you my cell phone. I have rights of privacy. I’m a famous actor. I’m not giving you my cell phone.” And I melt that in front of the — I cross-examined into that.
Jonathan Amarilio: Yeah, that’s a red flag.
Dan Webb: I said how does anybody, how does anyone in America decide to go use the police department and report a crime and then not give them the evidence to prove the crime? I said, “How can you do that?” And then he refused to give DNA evidence and refused to cooperate with the police and other requests that they had of him and would not give them the evidence that they requested. And I told the jury in closing argument, “Nobody who’s telling the truth does that. If you go to the police and tell the police that you’ve been the victim of an assault, a hate crime for you to then turn around and pretend and say you’re too famous to cooperate with the police and help them solve the crime, give me a break.” And I thought that hurt Smollett. And so, that was another part of his testimony Jon that I thought helped me in my closing argument.
Jonathan Amarilio: So you mentioned the closing, let’s go to the verdict. How did it shake out?
Dan Webb: The jury convicted him of five of the six counts. There was one count where at least one of the jurors has given a public statement where they couldn’t really understand what actually happened with that police officer that day. And so, they decided to be fair to Smollett, they acquitted him on one count but convicted him on five other counts of give — they basically gave me a complete verdict in our favor but quite frankly, for as far as appeal is concern, the fact that this jury showed itself to be a really great jury, they methodically went through every piece of evidence, every interview that Smollett had given and they checked out. The jury checked out every false statement that I proved or that I said I proved and they found in one case it wasn’t clear to them as to whether one count had been proven and they did what they should do. If they had some doubts about it, they’re supposed to return a not guilty verdict and they did. And quite frankly, that probably on appeal shows what a great jury verdict it was and probably makes it more difficult I’d like to think for Smollett to succeed on appeal.
Jonathan Amarilio: Sure. No, I can certainly say as an appellate lawyer that that kind of discernment doesn’t help when you’re trying to challenge a judgment. So I know sentencing is pending and there’s not much — you’re limited in what you can talk about it but let’s talk about the factors here. I assume that you’re going to be arguing for incarceration.
Dan Webb: I will be. First of all, I haven’t made a final decision on sentencing. Sentencing has not been set yet. Judge Linn has a hearing coming up later this week actually to set a final schedule for what you know Jon is pretrial and post-trial motions which take some time. So there will be post-trial motions and the judge will decide that schedule and I assume that in the near future that the judge will set a sentencing date in case. If he doesn’t grant the motions, a sentencing has to take place.
At that sentencing, I haven’t sat down Jon and put pen to paper and tried to map out exactly what I’m going to tell the judge. But look at the end of the day, I will be telling that I as a prosecutor have a right to talk in what they call aggravation. I get to tell the judge, “What are the factors that make this a serious crime that would warrant incarceration should you decide your honor to do it?” And I’m going to be telling him that there are two very serious courses of criminal misconduct by Mr. Smollett. Number one, what he did to the Chicago Police Department and to the City of Chicago is a disgrace. To take something as sensitive as a hate crime that we’re trying to eradicate out of the fabric of America and to symbolize it by him faking a hate crime, what effect does that going to have on others who want to report real hate crimes?
Dan Webb: Why would you do that when there are real victims out there that need to go to police departments, need to get respected for reporting crimes? And obviously, what he did here was wrong and it was serious criminal misconduct. He didn’t lie to the police once, he lied to the police on six different occasions in different interviews with them. And by the way, there are times Jon as you know as a lawyer, there’s times if the police decided that John Jones may have robbed a grocery store, if they go interview John Jones, John Jones may lie and say, “I didn’t rob the grocery store,” right? Those cases often don’t get prosecuted. Okay? They get prosecuted because they find out John Jones did rob the grocery store but he doesn’t get indicted for perjury or lied to the police.
That’s not what happened here. Smollett shows to create a complete fake hate crime and report it to the police. That conduct is a serious misconduct that I think a judge could consider imposing incarceration if the judge wants to consider doing it. But number two, it got worse here. Nobody has the right to lie under oath to a jury. A defendant has a right to testify in a court of law in his or her own defense but they have no right to lie. I will be explaining to Judge Linn there is no question that Smollett picked and chose but on the critical issues of this case, he lied to the jury. He gave false testimony to a jury.
And I believe under the case law, a judge has a right to consider that right in front of the judge, right in the judge’s courtroom, the judge heard a defendant lie to a jury. That’s up to Judge Linn. That’s not up to me. Judge Linn gets to decide what that means. But in my view Jon quite frankly, Smollett doubled down. He committed a very serious crime and then he compounded it by thinking you could just go in front of a jury and as a great actor, he could act in front of a jury and carry out another crime which is lying under oath and get away with it and it didn’t work.
Jonathan Amarillo: And that’s probably a great place for us to take a break. We’ll be right back.
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Jonathan Amarillo: And we’re back. Dan, the second prong of your assignment from Judge Toomin was to investigate the State’s Attorney’s office and its handling of the case prior to your appointment which you mentioned before. As a quick reminder to our audience who may have been following the case, after CPD uncovered evidence that you’ve talked about that this attack was staged by Smollett to gain publicity and to further his career, the state’s attorney as you said brought charges against Smollett. And then under I suppose a cloud of rumors and accusations of improper influence, influence peddling on his behalf and even, and I’d like to discuss this with you, some collusion possibly between Kim Foxx and Smollett’s sister, the charges were mysteriously dropped. You were appointed to investigate the circumstances of that. What did you find?
Dan Webb: Well, first of all, I want to make clear that I was assigned to figure out whether I could find evidence of wrongdoing. Wrongdoing in a public office can take many different forms but there were allegations involving Kim Foxx’s office that Kim Foxx had had interactions with family members of Mr. Smollett and that she may have been improperly influenced because no one could figure out why did this case get dismissed two weeks after it was indicted.
Jonathan Amarillo: There was even text messages from her apparently giving, from Kim Fox I should say, apparently giving Smollett’s sister legal advice about how she should handle himself, correct?
Dan Webb: There was. Now first of all, let me make two points. First of all, at the end of the day the conclusion I reached is that I could find no evidence of criminal wrongdoing by anybody in the State’s Attorney’s office, number one. Okay. However, I found that the State’s Attorney’s office had grossly abused their discretion and had engaged in major operational failures as an office and I found that Ms. Foxx and others in her office had intentionally lied to the public to cover up the unusual way this case was resolved. So I did conclude that there was wrongdoing by the State’s Attorney’s office but I should emphasize that I did not find any criminal wrongdoing by Ms. Foxx or her office.
Now in connection with that, something that I think in fairness needs to be explained is that there was communications between Kim Foxx as the state’s attorney and the Smollett family and in particular, a sister of Mr. Smollett. However, at that point in time when it started, Mr. Smollett was the victim of a crime so it is not unusual for a prosecutor to find themselves interacting with the family members. That’s okay. I don’t think Ms. Foxx should ever be criticized for that. She is a public official and she had a right to interact with the victim’s family.
What happened here though, as I point out in my 60-page report, is that in February of 2019 or 2020 that after a period of time, after the police reported to Ms. Foxx that Smollett was no longer a victim but was a subject of the investigation, she needed to shut off all communications with the family and she did not. She continued to text the family and continued to have phone calls. However, I did not see evidence. I didn’t see evidence that the family did anything wrong in interacting with Ms. Foxx’s office but I clearly made decisions that she engaged in misconduct by continuing to communicate with the family but in addition, she engaged in substantial misconduct by basically, as you can tell from my report, she appointed her top supervisor, Mr. Magats, to handle the Smollett case and she recused herself because she had had these communications with the Smollett family.
There’s nothing wrong with Ms. Foxx recusing herself. However, Illinois Law is extremely clear that when you recuse yourself, you don’t just get to go out and pick your successor. That’s not what Illinois Law lets you do. If you need to remove yourself as a prosecutor, you need to file a petition with the court to get a special prosecutor appointed. You don’t get to pick the guy sitting next to you in your office.
Jonathan Amarillo: And that’s because conflicts, I don’t want to get in the nitty-gritty of legal ethics, but because conflicts are imputed to those you work with.
Dan Webb: That’s correct and that’s the wisdom of the general assembly. I mean, you could have a law I guess that says the prosecutor could pick someone else in his or her office. That’s not what Illinois Law did. Illinois Law said, “If you want to recuse yourself, you’re done.” Okay, you are the state’s attorney. You removed yourself from the case. Your office is removed from the case. And then you have to go to court and get a special prosecutor. She didn’t do that. Ms. Foxx appointed her top supervisor, Mr. Magats, to handle the case.
She later learned that that was wrong. What she did was wrong. Other lawyers in her office went to her and explained, “You can’t do this” but she had already done it and she didn’t want to get caught in admitting she did something wrong and so, I have presented evidence that she continued to make false statements to the media that she denied that she did it wrong and she denied that she knew she did it wrong and that as you know as a lawyer, I have raised an issue that you as a public official in Illinois as a lawyer, you have ethical obligations under the Code of Professional Responsibility and one of the things that — there’s a rule called 8.4 which requires her to carry out her duties with all degree of honesty and integrity.
It’s no secret that as a lawyer, when I did my investigation and discovered that she had made false statements to the public, I am required under Illinois Law to report that to the attorney registration and disciplinary commission. I don’t have any choice.
I have to report it as you know under the opinions of this Illinois Supreme Court. So, I did it. My office reported to the lawyers ARDC, the Attorney Registration Disciplinary Commission the conduct that my 60-page report revealed. I gave my report to the ethical authorities and they get to decide that. I don’t. I have nothing to say about that. I don’t get to make any decisions about it, that’s not my job and that would be decided by others. But you can tell from my report what I thought was serious operational failures in the state’s attorney’s office really fell into two broad categories.
Number one was simply the actual resolution of the Smollett case and how that case got resolved by the state’s attorney’s office. I can’t find any justification or explanation for it.
Jonathan Amarilio: Dan, I read that in your report and it’s both understandable and kind of confounding. So, the fact that you could not find any explanation for why this case was treated the way it was by the state’s attorney’s office, what does that tell you? What do you see in the empty space?
Dan Webb: First of all, I can’t make up evidence. We interviewed every single person connected to the state’s attorney’s office that had anything to do with this case. No lawyer in that office could find any justification for what happened here except for Mr. Magats and Ms. Lanier. They are two people at a high level in the state’s attorney’s office who had the responsibility of resolving the Smollett case. I point out in my report even they disagree with each other as to how they made the decision to dismiss all charges, make him plead to nothing, to let him go scot-free.
Even those two decision makers could not agree with each other. That is an operational failure. But more importantly, as I did my job, I interviewed Kim Foxx. I interviewed her and she admitted to me she can’t give an explanation. She as the state’s attorney, now that she sees the facts, she can’t justify or explain how her office let Smollett go with this resolution. She can’t explain it and doesn’t think it’s justified. So, I have the state’s attorney’s office itself acknowledging that there is no rational explanation for what happened Jon but it happened.
And so, I can’t find it to be a crime but I find it to be a major abusive discretion and an operational failure.
Jonathan Amarilio: So, I don’t want to let you off the hook on this one. You can’t make up evidence but you can draw inferences. Putting aside the report, what do you think actually happened? You had three different decision makers, all of them gave you different stories, they can’t explain why something happened. What does that tell you?
Dan Webb: You tell me, you’re a lawyer. We can only base inferences on reason. You can’t make an inference because you want to. You got to have a factual foundation for an inference. I could probably make up 12 different inferences if I just want to spew them out here but I shouldn’t do that. Okay? I have the testimony of Mr. Magats and Ms. Lanier in which they disagree with each other why they did it. I can’t find any evidence of outside influence that caused them to make that decision. I cannot accuse them of a crime because I don’t have the evidence. And I’m not going to do that and I didn’t do it and so, all I can do is conclude that this should never have happened this way.
The facts are that they indicted the case in March of 2019 and in March 7th. And on March 26, 19 days later, the same case that the state’s attorney’s office thought they had very strong and powerful evidence of, they thought they had. They returned the indictment and they admitted they had very strong evidence.
Number two, I got them to admit in the interviews and it’s in my report they found no new evidence that made their case weak.
And number three, my big point as the special prosecutor is tell me what cases existed in the state’s attorney’s office as a president that would allow you to do this and they did not. In fact, they had to admit during my interviews they couldn’t identify a single prior case out of thousands of cases that would justify this. However, when they had to go to the media, when the media had this outcry from the public –.
Jonathan Amarilio: They said this was standard operating procedure.
Dan Webb: They did and Mr. Magats said, “We do alternative resolutions thousands of times in this office,” and clearly told the public this was a routine alternate resolution that we come up with ways to take people out of the criminal justice system but then Mr. Magats can’t explain, if that’s the case you still have admissions of wrongdoing. Even though you may dismiss the case, the person has to admit they’re guilty. You don’t just dismiss somebody. You can dismiss them and give them a break but they got to admit they’re guilty. They also then have to pay restitution and they have to be considered for a diversion program which contains often one year of supervision. That’s what everybody else goes through.
Smollett went through none of those hoops whatsoever. He got a hug and a kiss and sent out the door and he told the City of Chicago, “I didn’t do anything wrong and I’m leaving town.” But you can say to me, “Webb, you have to be able to draw some other inferences.” I don’t have another inference to draw. It shouldn’t have happened. It was wrong. And by the way, to misstate all this to the public and try to conceal it and to say, “Well, we have thousands of cases just like this,” that simply was not true.
Jonathan Amarilio: So, you said that you did receive differing explanations from the decision makers in the state’s attorney’s office. What were those explanations however unsatisfying?
Dan Webb: They’re set forth in my report but they deal with who exactly made the decision as to how they decided, who actually made the decision between the two of them, who made the final decision. That’s not clear, okay? Number two –.
Jonathan Amarilio: Yeah, they’re pointing fingers at each other essentially, right?
Dan Webb: Whether they’re giving testimony that doesn’t pinpoint who owns the responsibility between the two of them and that they, on a critical issue, is to who made the decision that they would evaluate Smollett to see if he can participate in the pre-trial diversion program, that neither one would accept responsibility of that. They clearly did not agree with each other on critical issues about how the decision was made between the two of them and the decision was made just to go to court on March 26, 2019 and dismiss it all.
Jonathan Amarilio: Last question on this point. You mentioned before that Kim Foxx recused herself however improperly. It was much reported that the recusal really wasn’t complete, not only in that she failed to remove her entire office from the case, but she was still in the mix. She was still in the conversation when decisions were being made, right?
Dan Webb: Right. So, here’s the issue. Illinois Law, when a prosecutor “recuses themselves,” that word recuse Jon, you may now know this, is not well defined in the law.
Jonathan Amarilio: Yeah.
Dan Webb: It just isn’t. And so, in fairness to Ms. Foxx, one could argue recusal means that you can still communicate with your staff, you could still get updated on what’s going on but you can’t make a decision. Any common sense would tell you shouldn’t do that. If you recuse yourself for appearances of propriety, you should not be communicating with your staff about the case. My god. Anyway, so yes, she did have update communications but I can’t say that that’s criminal wrong doing. I can’t even say it violates some statute because the word recusal is not clearly defined.
Jonathan Amarilio: And with that intriguing ambiguity, we’ll be right back with stranger than legal fiction.
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And we’re back. The game is stranger than legal fiction. Our fans knows the rules but just to recap, I’ve done some research on the internet. I found a real law that is ridiculous and strange and probably shouldn’t be real. I’ve made another one up and I am going to quiz Dan to see if he can distinguish strange legal fact from fiction. Dan, are you ready to play.
Dan Webb: I’m listening. I’m with you.
Jonathan Amarilio: So, Dan, both options hale from Evanston, Illinois, Chicago suburb, home of Northwestern University and perhaps more importantly, for hotdog aficionados like myself, Mustard’s Last Stand. They’re not a sponsor. Since we’re talking about ethics, they’re not a sponsor. I want to be clear about that. Option number one, in Evanston, it is illegal to change clothing in a car even with the curtains drawn for those vehicles with curtains I suppose. Option number two, in Evanston, it is illegal for more than three dogs to reside at the same residential premises.
So, option one, no changing clothes in the car. Option two, 101 Dalmatian situation is illegal. What do you think?
Dan Webb: I’m sorry. You’re saying that there is a law that says you can’t have more than three dogs in a residence?
Jonathan Amarilio: Correct. Maybe that’s the real one, maybe not.
Dan Webb: I know. I understand but that’s the other option?
Jonathan Amarilio: Yup.
Dan Webb: So, you want me to pick the one that’s the real law?
Jonathan Amarilio: That’s it.
Dan Webb: All right, here’s what I’m going to do. First of all, I’m a dog lover. I have had times I have my family have menageries as the kids grew up and the grandkids are growing up and I have multiple dogs sometimes and I would’ve lived in Evanston to tell me that you can regulate how many dogs I have, no. I’m going to say that the good altar people that run government in Evanston, I assume we’re talking about a municipal ordinance that you’re talking about.
Jonathan Amarilio: We are.
Dan Webb: And I’m going to say that most public officials in their right mind would not take action to completely irritate and upset their constituents. Telling people how many dogs they should own would upset me. By the way, I have changed clothes in a car when I have to do, at the airport to go from one place to another and I’ve done it very carefully. But I guess I could imagine that out of modesty prevails and that at some point a hundred years ago that somebody in Evanston said you can’t change clothing in a car. So, I’m saying that the dog law is made up and I’m saying the clothing car rule was a passed municipal ordinance by Evanston.
Jonathan Amarilio: And I will say that it’s a good thing that you do not call Evanston home because Section 9432 of the Evanston Code of Ordinances makes it illegal for more than three dogs to reside in the same premises. The other law, the changing clothes option I should say, is often listed on the internet as a law that’s real in Evanston but I went through the municipal code and could find no evidence of it. So, that is the fake one.
Dan Webb: Okay. Well, there you go. Okay, so as a dog lover, I apparently got that wrong and I’m glad I’m not living in Evanston.
Jonathan Amarilio: That’s going to be our show for today. Dan, thank you so much for coming on the podcast and for all your years of outstanding public service including in this case.
Dan Webb: Thank you for your kind comments. Have a nice day.
Jonathan Amarilio: I also want to thank our executive producer, Jen Byrne of the CBA, Adam Lockwood on sound and everyone at the Legal Talk Network family. Remember, you can follow us and send us comments, questions, episode, ideas or just troll us on Facebook, Instagram and Twitter at @cbaatthebar. Please also send us ideas, questions, topics or whatever for our upcoming mailbag episode. Our email is [email protected]. You can also rate and review us in Apple Podcast, Google Play, Stitcher, Spotify, Audible, iHeart or wherever you download your podcast. It helps us get the word out. Until next time. For everyone here at the CBA, thank you for joining us and we’ll see you soon At The Bar.
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Podcast transcription by Tech-Synergy.com