Seaton: Justice or Jussie In The System

Were you outraged when the Cook County State’s Attorney’s office announced they dropped 16 counts of felony disorderly conduct against “Empire” actor Jussie Smollett? Or did you shrug and move on with your day? Your answer to that question is going to say a lot about how you really view our modern criminal justice system.

Smollett, in case you’ve been living under a rock, claimed two men in MAGA hats jumped him at 2 AM in Chicago on one of last January’s coldest nights. According to Jussie, the duo kicked him in the ribs, poured bleach on him, strung a noose around his neck and yelled, “This is MAGA country!” In Chicago, of all places. One understands why people would call “bullshit” on these claims from the start, but I digress.

Prominent politicians quickly dubbed the story a “modern day lynching.” Chicago police launched an investigation which led them to two Nigerian brothers Smollett met on the “Empire” set. The brothers claimed Smollett paid them $3,500 via check to help him stage the hate crime, and video apparently shows the two buying supplies for the attack.

Testimony from the brothers, plus Smollett’s hesitance to cooperate with police, led a grand jury to indict Jussie on 16 counts of disorderly conduct based on making false statements to police. Smollett pleaded not guilty, lawyered up and posted a $100,000 bond.

All signs pointed to a trial, until Cook County Prosecutors announced a deal to nolle all charges on March 26 in exchange for two days’ community service and Smollett forfeiting the $10,000 bond money paid to the City of Chicago. Cook County State’s Attorney Kim Foxx justified the deal by acknowledging no length of jail time would satisfy the rage of the unduly passionate.

“There’s some people who were never going to be satisfied unless Mr. Smollett spent many nights in prison,” [State’s Attorney Kim] Foxx said…”Right now there’s a lot of emotion, and I wholeheartedly believe in our line of work we cannot be driven by emotion. We have to be driven by facts.”

Heads are still exploding over this decision. Chicago Mayor Rahm Emanuel denounced the deal as a “whitewashing of justice.” Police Superintendent Eddie Johnson, whose press conference on the initial charges probably didn’t help prosecutors, is livid over the deal.

Though Smollett’s criminal woes are finished at the state level, his legal troubles are far from finished. The FBI’s investigating him for mail fraud. Strangely, Mayor Emmanuel is considering civil litigation to recoup costs from CPD’s investigation. Some talking heads are even peddling a theory Michelle Obama’s Chief of Staff helped sweep these charges away.

If you count yourself among the outraged, try the following remedy. First, take a deep breath. Second, realize this isn’t necessarily a bad outcome in criminal law. Third, understand it doesn’t make it a great outcome either. It’s business as usual for the criminal justice system.

Let’s assume for a moment Smollett managed to leverage his familiarity with the Obamas to make all his criminal woes go away. To quote my mean-ass editor, “Sit down. I have something to tell you, and it’s going to make you sad.” This outcome is rather common if you’re wealthy, privileged, or carry the benefit of status. There are friends of connected families out there daily making phone calls to prosecutors asking for leniency on charges. If you don’t believe that, you’re delusional.

Even if we reject the notion Smollett walked because he knew someone who knew someone, how does calling for harsher punishment help the next person? Various people smarter than me have tried holding the public’s hand on this matter, but the lesson doesn’t seem to get through with the teaching stick, so it’s time to bring out the Angry Chair Leg of Truth.

Harsher punishment or more scrutiny on Jussie Smollett doesn’t necessarily serve justice. What it almost guarantees is the next gay black man charged by the Cook County State Attorney’s Office won’t see the same level of compassion. Kim Foxx is on notice at this point she didn’t punish a celebrity enough for an alleged hate crime hoax. What makes you think her attorneys won’t push for the harshest punishments possible to avoid blowback from the Mayor, the Police Superintendent, and the press?

Perhaps the best service of justice in the aftermath of Jussie Smollett is to remind ourselves this is an outlier. As Ken White once mused, this isn’t the sort of outcome most criminal defense lawyers cheer. It’s “a grim reminder of the brokenness of the system.”

We recognize it as what makes the system impossible for many of our clients to trust or respect.  And we know that when there’s a backlash against mercy and lenient sentences…it’s not the rich who pay the price.  It’s the ones who never saw much mercy to begin with.

If we care about the nameless person of color standing before a black-robed trier of fact, it’s time we collectively let Jussie Smollett go.


72 thoughts on “Seaton: Justice or Jussie In The System

  1. Dan

    “There’s some people who were never going to be satisfied unless Mr. Smollett spent many nights in prison”

    “Many nights in prison” would typically be the expected outcome of 16 felony counts, wouldn’t it?

    1. SHG

      “Typical”? No, but say 80% of the time it would result in prison doesn’t mean the other 20% doesn’t happen or isn’t so far outside the parameters of reasonableness that it shouldn’t happen. Anyone who sees crim law as a matter of what’s “typical” misses the point of what we do and why we do it. We’re fighting to avoid what’s “typical,” and when it’s accomplished, we consider it a good thing.

      1. Dan

        “80% of the time” sounds pretty “typical”. Foxx’s remark equates to, “some people wouldn’t be satisfied unless Smollett served what would be a perfectly ordinary (despite outliers on the high and low sides) sentence for the crimes he committed.” But that, of course, doesn’t serve her purpose, as she wants those people (i.e., those who think he should be punished for his crimes) to sound unreasonable.

        Yes, the system will occasionally err on the side of mercy. It’s a feature, and it’s better that it err on that side than (as is much more common) on the side of over-punishment. But that doesn’t change the fact that it errs, it doesn’t mean that it didn’t err here (it did), and it doesn’t make the people who want it to err less unreasonable.

        1. SHG

          Not sure if you moved your goalposts because your initial “typical” comment was shallow, or you’re now trying to make a different point. Regardless, it’s not error that different cases have different outcomes. That’s the purpose of the system, to distinguish each case on its own merits. And whether this case was an error (“it did”), how the hell would you know? Do you know whether Chicago cops beat the two Nigerian brothers with a hose?

          Show some intellectual humility. You have no more of a clue than I do, because neither of us live inside Kim Foxx’s head.

  2. Jeff

    Brave man, quoting that Popehat guy. Aren’t you worried about your comment section being overwhelmed with pony jokes now?

    1. CLS

      SHG is kind enough to tolerate the times when I get mad enough to write something. Something tells me he has no tolerance for pony jokes.

      1. losingtrader

        Something tells me he has no tolerance for pony jokes.

        He let my Enumclaw reference in yesterday.
        Nice guy, that SHG. Someday I’ll have to send him some boxed pears.

  3. B. McLeod

    According to the Cook County prosecutor’s media statements, they do this commonly for minor felonies. I thought it was interesting that the deal here apparently extended to sealing the case record. Basically, they took his $10,000 to partially reimburse the City of Chicago for the cost of investigating the “attack,” and shut the case down so Smollett can still claim in his future media statements that his original story was true.

    1. SHG

      What’s unclear to me is whether they “wiped” their database of the indictment. If so, that’s beyond anything I’ve ever heard of or experienced. Even if nolles happen occasionally for regular defts who don’t make the front page, nobody gets their info “wiped” off the database like it never happened.

        1. SHG

          That’s kind of what prosecutorial discretion is all about, and is meant to be about. The problem is that the vast majority of the time, lawyers (and others) outside the system never see it, so aren’t aware when it happens. Do you think I’m going to tell my clients’ nightmare stories when their cases are dismissed?

    2. CLS

      Equally puzzling is Kim Foxx walking back claims Smollett’s case file was sealed. She’s now saying if the case was sealed, it was a mistake, and they’re working to make sure it’s unsealed.

      Regardless, CPD released their entire case file to the media yesterday, so Smollett’s info will never be “wiped.”

    3. Black Bellamy

      Kim Foxx is denying her office had anything to do with sealing the record:

      “The court file was not supposed to be sealed,” she added. “I think what happened, the clerk sealed the whole thing. We did not advocate, do not believe that the court file should be sealed.”

      1. CLS

        Interesting. Tuesday the story was Smollett’s attorneys moved to have the file sealed, the State’s Attorney said “ok,” and the Judge hearing the motion signed off on the agreement. Why Foxx would shift the issue onto the clerk is beyond me.

        1. B. McLeod

          An “agreement,” one of which, there either was or wasn’t. That seems to be an uncertain element of all this. You expect agreements in plea deals, but all the nolles I have ever seen were unilateral, with nothing but limitations preventing a refilling of charges, nothing providing for the case to be “sealed,” and nothing requiring the defendant to forfeit bond. This thing surely looks like some kind of abnormal, bilateral agreement was reached, and with a lot more skill on the defense side of things than in the prosecutor’s office.

  4. David Meyer-Lindenberg

    Well done, Chris. I was disappointed by the many conservative talking heads insisting “but 16 felonies!!!” – I really thought awareness of overcharging was a thing on the right these days.

    1. CLS

      Dave, I’m unclear if your comment means I’m “conservative,” on “the right,” or if you’re speaking to the collective idiocy of conservative talking heads calling this a “miscarriage of justice.”

      With me, this isn’t a liberal or conservative issue. It’s about what’s best for the next guy not attached to a TV show. It’s actually a bit depressing this is a political talking point. (or that I’m apparently “conservative” or on the “right.”)

      That said, do you realize how many radio shows I’m not going to be able to listen to for the next week? My commutes are going to be a great deal quieter until this dies down.

      1. SHG

        My take was he was referring to what others were saying, as opposed to your thoughtful and modest adherence to principle.

        1. CLS

          I’m prone to give Dave the benefit of the doubt anyway. And adherence to principle can be a son of a bitch. It’s what pissed me off enough to spend time writing this post.

  5. Richard Kopf


    There is another aspect to your excellent point about the Cook County State’s Attorney’s office announcing they dropped 16 counts of felony disorderly conduct against “Empire” actor Jussie Smollett. But it might not be recognized by those who don’t have prostate problems due to advanced age. That is: for as long as I have been able to read the newspaper, Cook County has been sui generis.

    There was Mayor Daley with his power to raise the dead. He often won by courting the cemeteries out which the dead crawled from their crypts to vote

    Then there was 1968 Democratic National Convention and all the head busting I watched on a black and white TV. Think of Dan Rather (do you know who he is (was)?) demanding that the goons take their hands off him on the floor of the convention.

    Oh, and never forget the Cook County jail(s). At least until recently, they made Russian gulags look good.

    Then there was the sting, Operation Greylord (named for the powdered wigs worn by English judges). It was an investigation headed up by the FBI of the Cook County judicial system. Of the 17 judges indicted, 15 were convicted. One judge was convicted on 59 counts of mail fraud, racketeering and income-tax violations The stiffest sentence was received by former Circuit Judge Reginald Holzer, who received an 18-year sentence for accepting over $200,000 in bribes from multiple attorneys. Three defendants committed suicide

    And then, of course, there is the One. Cook County raised up a young and charismatic black community organizer who would become President of these United States.

    So, as we think about JS and his ticket to walk we should keep in mind that it occurred in the City of Broad Shoulders. In some sense, you might as well be speaking about a foreign country.

    Great post. Thanks for writing it. All the best.


    1. SHG

      Wasn’t it Daley who coined the expression, “An honest politician is one who gets bought and stays bought”?

      1. Richard Kopf

        Actually, the quote came from Simon Cameron according to Google. It tells me he was an influential American businessman and politician who served as United States Secretary of War for Abraham Lincoln at the start of the American Civil War. Cameron made his fortune in railways, canals and banking, and founded the Bank of Middletown. He then turned to a life of politics.

        That said, Daley turned the quote into an art form of practical politics. I sorta miss him.

        All the best.


        1. wilbur

          My favorite quote by Da Mare was, when being grilled by some reporters on awarding patronage jobs to his supporters, “Do you expect me to give these jobs to my enemies?”

          There’s a logic to that I can’t assail.

          1. Richard Kopf

            Elder abuse. Plain and simple

            I once thought “Google” was a play on words with “ogle.” I am more recently informed that Google will take you to places that allows one to ogle.

            Now that you have made fun of me, I hope you are proud of yourself. I will spend the rest of my day taking out my humilation on folks who are not as lucky as young Mr. Smollett.

            By the way, if you are so fucking good on Google, get me the etymology of “Jussie.” I await the favor your reply at your earliest convenience, shitlord.

            All the best.


            1. CLS

              Not sure which is funnier, a Federal Judge calling SHG a shitlord or the result you get when you actually Google the etymology of “Jussie.” Both had me laughing in a waiting room for a good five minutes.

    2. CLS

      Judge, Laquan McDonald taught me “justice” means something entirely different in Chicago. Your historical examples before and after that case just add to the bile in my throat.

      And as usual, you’re too kind to an unrepentant redneck. Thanks.

    3. Fubar

      So, as we think about JS and his ticket to walk we should keep in mind that it occurred in the City of Broad Shoulders.

      That’s close enough for a cigar in the stormy, husky, brawling City of the Big Shoulders.

    1. SHG

      People tend to get hung up on numbers. That there were 16 counts add a level of weirdness that might have had a reason or might have just been for public consumption that presented a similar weirdness when Foxx had to walk it back.

    2. CLS

      What’s puzzling about this is the “felony.” Illinois law on disorderly conduct places what Smollett allegedly did as a Class A Misdemeanor. I get prosecutors could work a grand jury into a felony frenzy, but when the actual law says otherwise, one might see a prosecutor try to strike some deal to save face and avoid letting the accused walk for egregious overcharging,

  6. Hunting Guy

    While I disagree with the results, I have to give props to his lawyer. He got the best deal possible for his client.

    Or am I missing something?

  7. Paul

    I both like and hate your last paragraph. Why does it have to be nameless persons of color instead of just nameless accused? Do you not care about the unpigmented? That aside most of the outrage I have heard is not based on sentence or lack thereof but on there not being a black robed trier of fact – no resolution on this front of the ongoing culture war. Granted I am not listening to conservative talking heads some mention in the comments. Outrage against a broken system isn’t necessarily bad, so why is it a problem if it’s conservatives that are outraged? Don’t we need a consensus if anything is to change? You equate accountability here to harsher sentencing and bias truth to Foxx’s statement through diction (acknowledge vs claim) which makes this read a bit slanted which I think undermines your point (although maybe I missed it).

  8. Jake

    “There are friends of connected families out there daily making phone calls to prosecutors asking for leniency on charges.”

    Some are outraged because they believe Smollet isn’t on the same team as they are. Others are outraged because the system allows for the sort of inside ball you highlighted.

    If all defendants were subjected to the same set of rules, regardless of race, wealth, influence, or fame, the people with power and influence and/or the robed ones would think harder about the ‘justice’ they mete out.

    1. SHG

      When fighting charges, every defendant uses whatever tools are available. Wealthier people can retain better lawyers, investigators, experts, etc. Should they be prohibited from using anything more than the shittiest, most overworked, most ill-prepared public defender can use? It’s not the fault of judges. Having a child-like concept of justice is just your delusion. “Justice” is whatever narrative you choose to believe, the one that tugs on Jake’s heartstrings. In the trenches, its fighting for life.

        1. SHG

          You need to get past this compulsion to have the last word. Your persistent pushing your entitlement to be the most clueless guy in the room does you no favors.

  9. warrior woman

    So, was there this level of outrage by the Mayor and the police when white police officers were not charged for shooting black youth? Just wondering.

      1. B. McLeod

        As I recall, he threw the then-chief of police under the bus, denied having previous detailed knowledge of the video, said something about not running for re-election, and cut a deal with the old-line black opinion leaders to dissuade the hot-headed, young BLM types from continuing to publicly demand his resignation.

  10. MonitorsMost

    I’m ambivalent about the punishment. I am surprised that the deal allowed Smollett to portray himself as innocent/exonerated if the prosecutor thought Smollett was guilty. Insisting that the government is right and that you shall now kneel before Zod if you want mercy might be the number one prerequisite to being a prosecutor.

      1. MonitorsMost

        I don’t know Illinois, but some form of formal deferred prosecution or pretrial diversion disposition. Something to point to in the record where Smollett is acknowledging guilt, certain facts that would indicate guilt, or that a tribunal would likely find him guilty under the facts like an Alford plea.

        Again, I don’t have any strong feelings on whether it should have happened. But I am surprised it did not.

        1. SHG

          The disposition was to nolle the case. So you want a different disposition? There are plenty of them, but the disposition here was dismissal, so they can’t prevent him from denying guilt afterward. Focus.

          1. B. McLeod

            For several years now, the SEC has been prohibiting defendants in administrative settlements from denying guilt afterwards. Of course, in the ordinary nolle, there is no “agreement,” but this one seems to have been somewhat abnormal in that respect. Even though counsel for both sides are now publicly denying that there was a “deal”.

  11. John Barleycorn

    All is good and well…

    So, when are we gonna have a post about the importance of, as wells as the “how to” of, properly documenting all the volunteer hours one puts in to help their community survive in the current tax climate. In particular…. if you show up in costume for spring clean up day in a pony or unicorn suit how can you get your participation documented under seal and then unsealed if you ever need to cash it in for justice consideration in the future for some minor felony or what not?

    And speaking of bonds why in the fuck don’t them judges just get with the program already and just stop already with all “ordering” and “issuing”. Enough already with all cops and robbers BS and chasing folks around for not showing up (people get hurt that way you know…). The could and should just call it good and move the bond money out of the holding account.

    I am sure the Sentence-O-Matic could figure it out and set the bail accordingly depending on ones social economic status and “identity signifiers” not to mention what ones horoscope said on the day of arrest.

    And if you do decide to show up due to the “principle” of it all or just because without jeopardy how can lady justice keep the peek-a-boo charades going and you just want to play along, shouldn’t you get to fraternize with the jurors before and during the trial not to mention have the option of making the prosecutor present his/her case in naked?

    NICE-lawer-ing or just the lucky draw in this particular case but either way I am thinking the mail will still get there on time even if Rahm doesn’t look too sexy when he is getting pegged and pretending not to like it without the obligatory hand job.

    P.S. I am still awaiting the particulars and details regarding all the different “kinds” of prosecutors in the land and I seriously want to know just why they don’t teach this stuff in High School along with home economics. If they did… I am thinking tax-differed bail savings accounts could actually and rightfully become a thing which would be pretty great for the economy not to mention some long over due piece of mind considering the never enduing proliferation of minor felonies coming into existence daily.

      1. John Barleycorn

        Hey now… LOL, I was sorta-figuring-if….. you don’t do it maybe he will. 😉 You do notice that you regularly invite guests to your front page to scramble or unscramble certain fashionable current affairs events such as this. I am thinking there is a reason for that… I could be wrong but just saying….

        Besides just because he doesn’t have a unicorn suit doesn’t mean that he isn’t thinking about getting one this spring.

        P.S. I would be happy to write a post for SJ about unicorn suits and why they are better than pony suits if you ever come around to figuring out why everyday is not the same as yesterday even though today is going to be exactly like tomorrow,

          1. John Barleycorn

            The Atlantic, The Washington post and that newspaper the esteemed one reads every day have all already called. Something or another to do about having to start balancing out their editorial pages or something and earnestly needing to provide their readers with some practical knowledge.

            The former two offered me straight up what Ken is getting paid, but when I told them I would do it for free if the pieces include a photo of the suit or they would have to pay me what that Johnathan T guy makes and or deposit the amount of air miles he has in his account, from flying back and forth between Chicago and DC all the time, into my account they said they couldn’t do it. Not even for their readers!

            And of course, I didn’t even respond to that newspaper the esteemed one reads everyday even thought my assistant said they were in for the photo idea because they like free.

            Normally I would have done it because they offered to throw in a few loafs of marbled rye after reading my archives. But I wouldn’t want to leap frog without having been blessed by the benevolent dictator and having appeared on the front pages of SJ first. Because everybody knows if you ain’t on twitter no way the the Supremes are gonna pillow talk with their partners about your piece unless you have also appeared on the front pages of SJ.

            Not to worry though, one of these days the esteemed one is gonna crack and sell me the SJ URL and probably just about the time unicorn suits start working their way into folks delayed comprehension synapses too, which will be nice seeing as how the pony suits won’t stand a chance then….

            P.S. Hey Chris you should insist the esteemed one link your practice when you post. I am willing to pay for that volunteer hours documentation advice you know….

  12. Jim Tyre

    Were you outraged when the Cook County State’s Attorney’s office announced they dropped 16 counts of felony disorderly conduct against “Empire” actor Jussie Smollett? Or did you shrug and move on with your day? Your answer to that question is going to say a lot about how you really view our modern criminal justice system.

    Really Chris? Really? Suppose, hypothetically, that I shrugged and moved on. Please enlighten me about what that says of my view of our modern criminal justice system.

  13. Julia

    It’s being reported that Smollett’s attorneys are trying to draw attention to the Nigerian brothers, claiming Smollett a victim (again). Are those the next “punishable” men of color?

    I shrugged at the dropped charges as Smollett didn’t hurt anyone except himself. But is this correct?

    1. B. McLeod

      Smollett is trying to rehabilitate his less-than-forthright image at this point, which requires the scenario that the brothers (for reason or reasons unknown to Smollett) attacked him in “whiteface” make-up, consistent with his report of the “attack.” It does not matter how obviously fantastical he gets now, if there is no recourse to any forum where evidence can counter bullshit.

  14. Pingback: Ought there be equal justice for all? - Jake DiMare

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