Jussie Smollett

Prosecutors across the state are ripping the Cook County state’s attorney’s handling of the Jussie Smollett case.

The Illinois Prosecutors Bar Association, serving as the voice for nearly 1,000 prosecutors across the state, said it does not condone the way Cook County State’s Attorney Kim Foxx has dealt with the actor’s case.

“The manner in which this case was dismissed was abnormal and unfamiliar to those who practice law in criminal courthouses across the state,” Lee Roupas, president of the state Prosecutors Bar Association, said in a statement. “Prosecutors, defense attorneys and judges alike do not recognize the arrangement Mr. Smollett received. Even more problematic, the state’s attorney and her representatives have fundamentally misled the public on the law and circumstances surrounding the dismissal.”

The actor on the “Empire” TV series was charged with disorderly conduct for allegedly filing a false police report in connection with his claims in January that he was the victim of a hate crime.

Smollett told police officers that at about 2 a.m. Jan. 29 two men approached him in the 300 block of East North Water Street. He said the offenders beat him, poured bleach on him, placed a noose around his neck and yelled out homophobic, racial and political slurs.

Smollett, who is black and gay, said the offenders were wearing “Make America Great Again” hats and shouted that “This is MAGA country.”

During their investigation of the reported incident, Chicago police said they discovered that Smollett made up the story.

Kim Foxx

Without notice or a public court hearing, the Cook County State’s Attorney’s Office dropped the charges against Smollett on March 27. Foxx said that Smollett agreed to forfeit his $10,000 bail and that the money would be turned over to Chicago to pay for manpower used in the investigation.

Chicago officials said the bail money comes nowhere close to paying for the $130,000 in manpower cost the investigation took.

Both parties also agreed to seal the case from public scrutiny.

The Illinois Prosecutors Bar Association president said the lack of transparency regarding the dropping of charges against Smollett also is a red flag.

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“The appearance of impropriety here is compounded by the fact that this case was not on the regularly scheduled court call, the public had no reasonable notice or opportunity to view these proceedings, and the dismissal was done abruptly at what has been called an ‘emergency’ hearing,” said Roupas, an assistant state’s attorney in DuPage County. “To date, the nature of the purported emergency has not been publicly disclosed. The sealing of a court case immediately following a hearing where there was no reasonable notice or opportunity for the public to attend is a matter of grave public concern and undermines the very foundation of our public court system.”

Roupas, former chairman of the Cook County Republican Party, added that Foxx, a Democrat, never truly stepped away from the case after she had been in contact with a member of Smollett’s family. She appointed a member of her staff to head the case instead of outside counsel, Roupas noted.

Lee Roupas

“When an elected state’s attorney recuses herself from a prosecution, Illinois law provides that the court shall appoint a special prosecutor. Typically, the special prosecutor is a neighboring state’s attorney, the attorney general or the state appellate prosecutor,” Roupas said. “Here, the state’s attorney kept the case within her office and thus never actually recused herself as a matter of law.

“Additionally, the Cook County State’s Attorney’s Office falsely informed the public that the uncontested sealing of the criminal court case was ‘mandatory’ under Illinois law. This statement is not accurate.

“To the extent the case was even eligible for an immediate seal, that action was discretionary, not mandatory, and only upon the proper filing of a petition to seal … The state’s attorney not only declined to fight the sealing of this case in court, but then provided false information to the public regarding it.”

The state Prosecutors Association president also challenged Foxx’s claims that the arrangements such as Smollett’s are “available to all defendants” and “not a new or unusual practice.” He said she even implied it was done in accordance with a statutory diversion program.

“Central to any diversion program, however, is that the defendant must accept responsibility,” Roupas said. “To be clear here, this simply was not a deferred prosecution.

“Prosecutors must be held to the highest standards of legal ethics in the pursuit of justice. The actions of the Cook County state’s attorney have fallen woefully short of this expectation. Through the repeated misleading and deceptive statements to the public on Illinois law and circumstances surrounding the Smollett dismissal the state’s attorney has failed in her most fundamental ethical obligations to the public. The IPBA condemns these actions.

“This irregular arrangement was an affront to prosecutors across the state, the Chicago Police Department, victims of hate crimes and the people of the city of Chicago and Cook County.”

kbeese@chronicleillinois.com