It doesn’t really matter how much you hate Jussie Smollet or what he did. Not even how it played into the lie that permeated the politics of the moment. It also doesn’t matter how much you hate Kim Foxx, or believe her office was corrupted by the politics of the moment. Like it or not, Smollett was a criminal defendant and Foxx the Cook County State’s Attorney.

And they made a deal.

The Illinois Supreme Court on Thursday overturned the conviction of Jussie Smollett on charges he faked an anti-gay, anti-Black hate crime, saying the state made a deal with Smollett to drop the charges and it can’t renege on that agreement.

The court reversed an appellate court decision that upheld the conviction and reversed the conviction itself, sending the matter back to the trial court for dismissal.

It was clear from the beginning where the justices were going. Their opinion started with a quote from a 1986 case, Bowers v. State: “The public justifiably expects the State, above all others, to keep its bond.”

Contrary to what many seem to believe, the plea deal was fully formed and received the approval of the judge presiding over the case. Lest anyone try to blame the judge, the prosecution took the position that this was a fair and appropriate deal, and judges are rightfully reluctant to question the prosecution’s take on its own case.

[O]n March 26, 2019, an assistant state’s attorney explained in open court before Judge Steven Watkins that the State was moving to nol-pros the charges. The assistant state’s attorney explained the decision to the court as follows:

“Judge, on today’s date, the State does have a motion in this case. After reviewing the facts and circumstances of the case, including Mr. Smollett’s volunteer service in the community and agreement to forfeit his bond to the City of Chicago, the State’s motion in regards to the indictment is to [nol-pros]. We believe this outcome is a just disposition and appropriate resolution to this case.

I do have an order directing the Clerk of the Circuit Court to release Bond No. D 1375606, payable to the City of Chicago, to be sent directly to the City of Chicago, Department of Law. And there’s an address and the person there who takes care of that on behalf of the City.”¹

1 The amount of the bond was $10,000.

The trial court granted the State’s motion to nol-pros and to release defendant’s bond to the City of Chicago.

For the benefit of the unwashed, “nol-pros” is short for the Latin phrase “nolle prosequi,” meaning they will not pursue prosecution. That is a decision to be made by the prosecution, in this case the State’s Attorney for Cook County, and that would be Kim Foxx. If people have a problem with Foxx being the prosecutor, then they should have elected someone else. But they didn’t, and as long as Foxx was the prosecutor, Foxx got to make the prosecution decisions, including the decision to nol-pros the case.

And upon Judge Steven Watkins signing off on the deal, the die was cut.

In Santobello v. New York, 404 U.S. 257, 258 (1971), the defendant agreed to plead guilty to a lesser-included offense of the crime charged if the prosecution would make no recommendation as to the sentence. After the defendant pleaded guilty to the lesser charge, the prosecution recommended the maximum sentence, and the trial court imposed it. The United States Supreme Court vacated and remanded, holding that, “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”

A plea deal, even to a non-final disposition like a nol-pros, is a deal. A contract. If a criminal defendant can’t rely on the courts to compel the prosecution to honor the deal made, and upon which the defendant relied to his detriment, the system implodes.

Here, the deal wasn’t good enough for a retired appellate judge, who pushed his way into the mix and got a judge to appoint a special prosecutor.

All of the above statements indicate a case that has been resolved, not one in which further prosecution is contemplated. Indeed, nothing that happened after the initial case was dismissed makes sense if continued prosecution was contemplated. If, for instance, the CCSAO had nol-prossed the case because of evidentiary problems that would require further investigation before a prosecution could proceed, there would have been no public outcry. A retired judge would not have sought appointment of a special prosecutor. If further prosecution by CCSAO were contemplated, Judge Toomin would not have argued that the disposition “shocked officialdom as well as the community.” The OSP would not have stated in a press release that it disagreed with how the CCSAO “resolved the Smollett case” and contended that the disposition was dissimilar to how the CCSAO had disposed of similar cases. All of these things happened because the previous case had been resolved.

A shocking disposition? Perhaps, but so what? The State’s Attorney, in this case Kim Foxx, is the  putative lawyer for the People. The People put her in that position, and by doing so, empowered her to act on the People’s behalf. If the People are shocked by Foxx’s performance, they can take it out on Foxx. But as for Jussie Smollett, a deal’s a deal, and the deal was done.