by Jason Meisner / Chicago Tribune
A Cook County judge Thursday ordered the case file in the aborted prosecution of “Empire” actor Jussie Smollett unsealed, marking a victory for the Chicago Tribune and other news organizations and adding another twist to a case with seemingly no end to controversy.
Smollett’s attorney had succeeded in sealing the court records at the same unannounced hearing in March at which State’s Attorney Kim Foxx’s office abruptly dropped all chargesthat the actor had staged a hate crime attack on himself.
After news organizations sought to unseal the records, Smollett’s legal team opposed the request, citing the actor’s privacy rights.
But Circuit Judge Steven Watkins held that those privacy rights had been trumped by Smollett and his attorneys going before the cameras to declare his innocence.
“These are not the actions of a person seeking to maintain his privacy or simply be let alone,” Watkins said in a 10-page ruling that he read aloud in court. “While the court appreciates that (Smollett) was in the public eye before the events that precipitated this case, it was not necessary for him to address this so publicly and to such an extent. By doing so, the court cannot credit his privacy interest as good cause to keep the case records sealed.”
Tribune attorney Natalie Spears, who represented the news media in the case, said after court that the judge’s decision should be applauded.
“This is about transparency and trust in the system, and we believe the public has a right to know what their government did here and why,” Spears said in the lobby of the Leighton Criminal Court Building, the county’s main criminal courthouse at 26th Street and California Avenue.
Brian Watson, one of Smollett’s attorneys, would not say Thursday whether the actor might appeal Watkins’ decision to a higher court.
After the ruling came down, reporters waited for several hours in the circuit court clerk’s office — which maintains the criminal records — for the documents in the case to be scanned. In the end, however, little new was revealed — not surprising since Foxx’s office had abruptly dropped the 16-count indictment against Smollett just less than three weeks after he was charged. In fact, the majority of the 192-page file consisted of the media’s motions objecting to the sealing of the file in the first place.
But the judge’s ruling still could have a significant impact. The Chicago Police Department and the Cook County state’s attorney’s office had both denied public records requests on the grounds that the file was sealed. After the seal was lifted, Foxx’s office said it was reviewing its records and expected to release more documents by June 3.
Meanwhile, the legal fallout over the Smollett case is continuing on several fronts.
As reporters waited for the criminal file to be unsealed, former state appellate judge Sheila O’Brien held a news conference to talk about her efforts to get a special prosecutor appointed to investigate Foxx’s handling of the case. She called the judge’s decision unsealing the court file a “good first step” but said more needs to be done to ensure transparency.
“It’s not the court file that’s all-important, it’s Ms. Foxx’s file and the decision-making process in how this case was handled,” O’Brien said in the courthouse lobby.
In her petition, O’Brien highlighted how Foxx recused herself early in the investigation after communicating with a Smollett relative — only to later claim that it was not a recusal “in the legal sense” that would have required the entire office to withdraw from the prosecution.
Communications later released to the Tribune showed Foxx had asked police Superintendent Eddie Johnson to turn over the investigation to the FBI after she was approached by Tina Tchen, a former chief of staff to first lady Michelle Obama.
A hearing on O’Brien’s request is scheduled for Tuesday before Judge Michael Toomin. O’Brien said she planned to ask Toomin to step aside and let a judge from outside Cook County decide the case to avoid any appearances of bias — a move the judge already shot down last week.
Asked why she was spending so much time and effort to get a special prosecutor appointed, O’Brien said it was simple.
“This case made me jump up off the couch, and my conscience said somebody has to do something,” she said, clutching copies of her court pleadings in a yellow folder. “And I have time and a typewriter, so I started typing.”
In addition to O’Brien’s petition, the county’s inspector general, at Foxx’s request, is conducting a review of how her office handled the Smollett prosecution.
Smollett, meanwhile, is facing a lawsuit filed by the city seeking repayment of the $130,000 in police overtime it cost to investigate his allegations.
In addition, Smollett’s attorneys have been sued for defamation in federal court by two Chicago brothers who say their reputations were ruined by claims they orchestrated the attack on the TV star.
And the FBI has been investigating a threatening letter purportedly sent to Smollett at the West Side studio where “Empire” is filmed a week before he was attacked.
In arguing that the actor’s criminal records should be unsealed, Spears, the Tribune attorney, told the judge in a hearing earlier this month that it was pointless to keep the high-profile charges against Smollett — and their subsequent bombshell dismissal — under wraps because it had already made news all over the world.
“There is no way to secrete the fact of Jussie Smollett’s arrest. At this point it is widely and publicly known from here to Helsinki and back,” Spears said. “No potential employer, let alone anyone with a pulse, does not know about Jussie Smollett’s arrest at this point.”
Watson, the Smollett attorney, argued at the time that the actor is entitled under the law to have his file sealed from public view. Opening it back up because of his high-profile status would set a dangerous precedent, he said.
“The argument is circular and it’s self-serving,” Watson said at the May 16 hearing before Watkins. “The root of this problem is not Mr. Smollett. The root of this problem is that the media, Mrs. Spears’ clients, created publicity, and now her clients want to use that against someone who wants to get their rights back.”
In his ruling, Watkins said there was “a certain irony” in the media’s argument that Smollett’s case should be treated differently from the average criminal defendant’s whose request to have records sealed would go unnoticed.
But the judge said Smollett himself added to the media frenzy over his case — particularly with his interview with “Good Morning America” reporter Robin Roberts in March in which he discussed the purported attack in detail, as well as Smollett’s comments to reporters in the courthouse lobby shortly after the March 26 dismissal of the charges.
“(Smollett) voluntarily stood in front of cameras from numerous news organizations in the courthouse lobby and spoke about the case,” Watkins noted.
Smollett, who is black and openly gay, reported in late January being the victim of an attack by two people shouting racist and homophobic slurs.
But he was charged after Chicago police determined that Smollett had agreed to pay $3,500 to two brothers he knew to stage the attack.
Foxx has faced fierce criticism over her office’s abrupt dismissal of the charges, including calls for her resignation by the Chicago Fraternal Order of Police.