FILE - In this Feb. 22, 2019 file photo, Cook County State's Attorney Kim Foxx speaks at a news conference, in Chicago. Text messages show Fox, the Chicago prosecutor whose office handled the case of "Empire" actor Jussie Smollett told her top deputy that Smollett was a "washed up celeb" who was overcharged. The office of Cook County State's Attorney released thousands of documents from the investigation late Tuesday, April 16, 2019, in response to media requests. (AP Photo/Kiichiro Sato, File)

Despite recusal, prosecutor told deputy Smollett overcharged

April 17, 2019 - 6:10 pm

CHICAGO (AP) — Chicago's top prosecutor injected herself into the criminal case accusing Jussie Smollett of staging a racist, anti-gay attack in January despite having recused herself, telling a deputy in a text message weeks before charges were suddenly dropped that she believed the office had overcharged the "Empire" actor, according to newly released texts and emails.

Cook County State's Attorney Kim Foxx and her staff also scrambled later to explain the March 26 decision to drop all criminal charges against Smollett amid an explosion of public criticism, several thousand documents provided to The Associated Press and other media through open records requests indicate.

After communicating in early February with former first lady Michelle Obama's former chief of staff Tina Tchen and with a member of Smollett's family about the Smollett investigation, Foxx recused herself on Feb. 13, her office citing communications with the family member whom Tchen had encouraged Foxx to call.

In late March — after questions were raised about what prompted the dropping of charges — Foxx and her aides sought to recast their explanations about her role, with one statement saying Foxx "used the term 'recuse'" in the "colloquial use of the term" and that she'd actually "informally separated herself from the decision-making."

Foxx nevertheless weighed in at critical points as her staff decided how or whether to proceed with the prosecution, including in a March 8 text to First Assistant State's Attorney Joseph Magats, who became the final decision-maker after Foxx purportedly stepped away.

Foxx texted, with ellipses included to introduce her point: "Sooo ...... I'm recused, but when people accuse us of overcharging cases ... 16 counts on a class 4 becomes exhibit A."

Magats responded to his boss, saying: "Yes. I can see where that can be seen as excessive."

Smollett had faced 16 felony counts related to making a false report that he was assaulted by two men around 2 a.m. on Jan. 29 in downtown Chicago. Investigators said he made the false report because he was unhappy with his pay on "Empire" and believed such an incident would give his career a boost.

The documents don't include key communications among prosecutors or with Smollett's legal team, so questions remain unanswered about the extent of Foxx's involvement and the logic behind tossing the case without requiring Smollett to accept responsibility for lying. Smollett, 36, maintains that he's told the truth all along.

In the same March 8 exchange with Magats, Foxx appears to compare the charges against Smollett to those filed against R&B singer R. Kelly in another high-profile case being handled by her office, though she does not reference Kelly by name.

"Pedophile with 4 victims 10 counts. Washed up celeb who lied to cops, 16," Foxx texted.

Kelly was indicted in February on 10 counts of aggravated sexual abuse involving three girls and one woman. Kelly denies the allegations.

Foxx has long advocated alternatives to prosecution of nonviolent crimes. In her March 8 exchange with Magats, Foxx signaled that such an approach may be appropriate in Smollett's case.

"Just because we can charge something doesn't mean we should," she texted.

Texts also show that prosecutors seemed to hope news wouldn't spread widely about the March 26 hearing at which the charges against Smollett were dropped. The office made no advanced announcement about the hearing and seemed unhappy that Smollett's attorney's leaked word of it.

"It appears as if Jussie's press person may have notified the press," Risa Lanier, the lead trial prosecutor in the Smollett case, said in a text to office spokespeople.

Foxx also discussed what to tell police Superintendent Eddie Johnson, who said he was blindsided by the dropping of charges.

Lanier also texted Magats as news broke about the dismissal of charges on March 26, and reporters began streaming to the courthouse, and calling and emailing the state's attorney's office contacting for comment.

"Just wish I could have anticipated the magnitude of this response and planned a bit better!" Lanier wrote.

The newly released emails indicate chaos within the state's attorney's office in the hours and days after charges were dropped. Office spokespeople provided often-muddled or contradictory answers to the same questions from journalists, including on the shifting explanations about Foxx's recusal.

Magats tried to reassure Lanier, saying the response wasn't something they could plan for, and adding: "It's the right decision." Lanier answered: "I agree and absolutely stand by the decision made."

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Follow Michael Tarm on Twitter at http://twitter.com/mtarm

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Check out the AP's complete coverage of the Jussie Smollett case.

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