A few days ago, the Frank Report reviewed the timeline in the Jessie Smollett case – and the reasons why Cook County Circuit Court Judge Michael P. Toomin appointed Dan Webb to serve as a Special Prosecutor in the matter.
As we noted at the time, Webb was appointed to investigate allegations that Jussie Smollett staged a fake racist, anti-gay attack against himself – and to determine why the Cook County State Attorney’s Office dismissed all the charges on which he had been indicted.
So, what kinds of charges could Smollett be facing as a result of Dan Webb’s investigation – and is there anyone else that could be facing charges?
Potential Charges Against Smollett
RE: State Charges
To begin with, the Special Prosecutor could ask a grand jury to reinstate the 16 felony counts of disorderly conduct that were dismissed last March by Joseph Magats, who at that time was serving as the Acting Cook County State Attorney (Kim Foxx, the Cook County State Attorney, had appointed him to that position when she recused herself from the case).
That’s because there is no “double jeopardy” issue that would prevent that from happening since Smollett was never tried on those charges – and since he never entered into any plea deal with the Cook County State Attorney’s Office regarding them.
In Illinois, a person commits the felony of disorderly conduct when they knowingly transmit – or cause to be transmitted – to any peace officer, public officer or public employee a report to the effect that an offense has been committed, is being committed or will be committed even though there is no reasonable ground for them to believe that to be true.
Based on that definition, it seems highly probable that Smollett will be re-indicted on one or more counts of felony disorderly conduct.
RE: Federal Charges
It’s also possible that Smollett could be facing a federal charge for mail fraud.
The potential mail fraud charge has to do with the letter that Smollett received on January 22nd – about a week before the alleged attack.
The letter was mailed to Smollett at the Chicago-based Cinespace Studios – which is where the show “Empire” is filmed – and contained a cartoon figure strung up by a noose and cut out letters spelling out “You will die, black fag”.
It also contained a white substance – which prompted a HAZMAT team to respond to the Cinespace Studios and remove the letter and its contents.
The white substance turned out to be crushed Tylenol.
The crime of mail fraud consists of two elements: (1) devising or intending to devise a scheme to defraud (or to perform specified fraudulent acts); and (2) using the mail system to for the purpose of executing – or attempting to execute – the scheme (or to perform specified fraudulent acts).
Per 18 U.S.C. § 1341, the penalties for committing mail fraud include a fine – and a sentence of up to 20 years in federal prison.
The FBI has been handling the investigation concerning the letter but has not released any information about its investigation.
The primary issue regarding any potential federal charges concerns the meaning of the term “scheme or artifice to defraud”.
According to several sources, Smollett sent the letter to himself as part of his attempt to get a salary increase from the producers of the “Empire” show.
Whether that constitutes “fraud” is certainly open to question – and Renato Mariotti, a former federal prosecutor, has opined that “I don’t think there’s any reasonable chance that will happen”.
But don’t be surprised if Dann Webb seeks a mail fraud indictment against Smollett.
Given Smollett’s refusal to back down from his ludicrous claim that he was attacked by two men who put a noose around his neck and poured bleach on him, I’d have no problem with that whatsoever.
Potential Charges Against Foxx
Numerous individuals and organizations have publicly rebuked Foxx for her handling of the Smollett case.
That includes the Illinois Prosecutors Bar Association (IPBA) – which represents over 1,000 Illinois prosecutors.
In a statement that was released shortly after the charges against Smollett were dismissed, the IPBA stated: “The Cook County State’s Attorney’s handling of the Jussie Smollett case is not condoned by the IPBA, nor is it representative of the honest ethical work prosecutors provide to the citizens of the State of Illinois on a daily basis”.
The IPBA also claimed that Foxx had violated state law when she appointed Magats as Acting Cook County State Attorney.
“When an elected State’s Attorney recuses herself from a prosecution, Illinois law provides that the court shall appoint a special prosecutor,” the IPBA’s statement read. “Here, the State’s Attorney kept the case within her office and thus never actually recused herself as a matter of law”.
Although it appears that she definitely violated the applicable state law, it’s unlikely that Foxx will face any criminal charges for doing so.
Unless, of course, Dan Webb can put together a conspiracy charge against her and the others who were involved in the charade that ended with Smollett not being prosecuted.
There Oughta Be a Law
In recent years Congress – and the vast majority of state legislatures – have passed “hate crime” laws that are intended to protect people against crimes that are motivated by enmity or animus over one or more of their personal characteristics.
The only states that currently do not have such “hate crime” laws are Arkansas, Georgia, South Carolina, and Wyoming.
These “hate crime” laws usually include harsher punishments for crimes that are committed because of the victim‘s age, color, disability, ethnicity, gender, gender identity, national origin, race, religion, or sexual orientation.
While many have questioned the constitutionality of these laws, Georgia is the only state whose “hate crime” statute has been struck down by its highest court.
Based on the Smollett case, it may be time for Congress and state legislatures to start passing statutes that would impose special penalties on those who fake a “hate crime”.
Because he claimed that he was attacked on the basis of his race and his sexual orientation – and because in doing so he raised the level of tension in the City of Chicago between blacks and whites – and between straights and the LGBTQ communities – I believe Smollett deserves a harsher punishment than the average person who files a false report of a crime.
I also believe that the penalties imposed on those who make such false reports should be proportionate to the seriousness of the fake crime they reported.
Thus, for example, a person who falsely reports that they were kidnapped and sexually assaulted should face a harsher sentence than someone who falsely reports that their cell phone was stolen.
OK, Frank Report readers, this is your chance to weigh in on these issues…