Jussie Smollett is the target of new charges, but his case is no longer mainly about him. Who is really on trial are progressive prosecutors, like Kim Foxx, the Chicago State’s Attorney, whose office made the decision to drop the original charges brought against Smollett. What is really on trial is whether African Americans – as elected prosecutors and as criminal defendants – are entitled to equal justice under the law.  

This week Smollett was charged with six counts of disorderly conduct, for allegedly lying about being the victim of a hate crime. Smollett is the gay African American actor who was featured in the TV show Empire. Last year, the Chicago State’s attorney first filed charges against him, and then dismissed the charges, after Smollett paid a fine and performed community service. 

At this point the most important question is not whether Jussie Smollett is guilty.  

If he did it, it was a dumb ass caper that ruined his reputation and cost him millions in lost earnings. I think the evidence suggests Smollett lied about being attacked, and also that the original resolution of the case – Smollett performed community service and paid a fee, in exchange for the charges being dismissed – was appropriate.  

But now the most important question is whether a black woman prosecutor is allowed to do her job and exercise the same power and discretion that other prosecutors enjoy. The vast majority of prosecutors are white and male; African American women are less than one percent of elected district attorneys.  

After Foxx’s office dropped the charges against Smollett, a firestorm ensued. Trump tweeted it was an “embarrassment to our nation.” Chicago’s then mayor called it a “whitewash.”

Then, in a bizarre and unprecedented maneuver, a Chicago judge appointed an independent “special prosecutor” to oversee how Foxx had handled the case.  

The mission was clear: last month, using words that should never be used regarding a black man suspected of a crime, Kyle Smith wrote in the New York Post, “Smollett has not been nailed, and Chicago wants him nailed. He will get nailed.”  

So a white man was brought in to clean up after a black woman prosecutor, and not just any white man, but Dan Webb, a lawyer of great repute. Webb was the special counsel in the Iran-contra scandal, and in private practice he has represented some of the most powerful people and businesses in the world, including Bill Gates, Microsoft, General Electric, and Verizon. Donald Trump wanted Webb to defend him in the Mueller investigation, but Webb turned him down.  

So they brought in this distinguished legal superstar to pursue a disorderly conduct case against a C-list actor. Really? Webb went after Smollett with zeal, including getting a judge to order Google to turn over a year’s worth of Smollett’s most personal information, including emails, photos, and location tracking everywhere he had been.  

I can respectfully suggest some better uses of Mr. Webb’s formidable skills. If he has some spare time to investigate why people are not charged with crimes, maybe he could focus on Donald Trump Jr. Or, if Webb’s big thing is going after prosecutors who abuse their power, I know of an Attorney General who could stand some investigating. I would just love to see Bill Barr’s phone records. Lord knows Congress won’t, even if it subpoenaed them.  

Foxx explained that her decision to drop charges was consistent with her platform of keeping people out of prison who don’t pose a danger, and using alternatives to punishment – like the community service that Smollett performed – when appropriate.   Foxx prefers to focus her prosecutorial resources on the real bad guys. She ran for office because the previous State Attorney had covered up the killing of Laquan McDonald by a police officer. Foxx convicted that cop of murder. Since then, the police union has launched a racist and sexist campaign against her.  

This kind of push-back is what happens to progressive prosecutors generally, and black women progressive prosecutors specifically. When Boston elected its first African American head prosecutor, the National Police Association tried to jeopardize her license to practice law before her first day in office. Aramis Ayala, the District Attorney in Orlando, FL, had death penalty cases removed from her jurisdiction by the state’s Republican governor.  Kimberly Garner, the first black elected prosecutor in St. Louis, recently sued the entire city leadership, claiming a conspiracy to prevent her from doing her job.  

Prosecutors are the most powerful actors in the criminal legal process, mainly because of their huge discretion.  But it seems when they use that power to slow down the new Jim Crow, rather than to accelerate it, they don’t have as much power as everybody thought.  

It’s true that Jussie Smollett got a good deal, and that his money, celebrity, and fancy lawyers probably helped. But does anyone really want to make Smollett, a gay black man, the symbol of privilege in the criminal justice system? Equal justice should mean that Smollett is able to use his resources the same way a rich white dude would. As the expression goes, don’t hate the player, hate the game.  

The good news is that Chicago citizens retain two important votes. One happens on March 17, when Foxx is up for re-election. Many people have legitimate concerns about Webb’s timing in announcing charges against Smollett so close to election day. Voters might send a message about whether they prefer their prosecutors selected by the citizens of Chicago or some random judge.

The other vote will happen if Smollett exercises his constitutional right to a jury trial. I was born and raised in Chicago, although I have not lived there for many years. If I were on that jury, I would vote “not guilty” even if I thought Smollett did what Webb says he did.  That kind of “jury nullification” is legal, and sometimes appropriate, a federal court has stated, as a “necessary counter” to “arbitrary prosecutors.”  

I would vote “not guilty” to send the message that the citizens of Chicago have the right to elect prosecutors who share their values. I would vote “not guilty” to send the message that progressive African American women prosecutors have the same right to exercise their power as conservative white men.  

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