There’s no doubt Kim Foxx mishandled the Jussie Smollett case. There were inappropriate contacts between Foxx and a politically-connected friend of Smollet’s family, a bumbled recusal by Foxx, and the sudden announcement of a resolution with no explanation.
On the other hand, the actual disposal of the case by Foxx — despite the opinions of others, including former Mayor Rahm Emanuel and special prosecutor Dan Webb — fell within prosecutorial discretion and was completely consistent with her policy of seeking pre-prosecution resolutions to reduce incarceration of nonviolent offenders — including on disorderly conduct charges.
Indeed, taxpayers might question the use of thousands and thousands of dollars on a special prosecutor for a minor crime while the county’s criminal justice system is so strapped for resources and violence plagues communities. And the timing of Smollett’s arraignment, just before a sensitive election in which the case is a major issue — when there’s no apparent reason it couldn’t have waited a few weeks — is worth questioning too.
The mishandling of the case by Foxx has been swollen far out of proportion due to Smollett’s celebrity status and the sheer bizarreness and stupidity of his alleged scheme. Reactions to the case have “revealed a deep divide in Chicago and the region” between residents of white, higher-income communities who want tough-on-crime policies and “residents in lower-income black and brown neighborhoods where there are calls for the top prosecutor to be fair and forgiving,” according to the Chicago Tribune. From what I hear, the case is also giving pause to white liberals who are otherwise supportive of Foxx’s policies.
The danger is that the case is distracting attention from Foxx’s very real accomplishments.
It’s also diverting attention from another issue — the possibility of ethical conflicts for Foxx’s leading opponent. One expert in legal ethics told me that candidate Bill Conway’s use of a current client in a campaign commercial is “highly problematic.”
Conway, who worked for six years in the state’s attorney’s office after law school and served in naval intelligence in Afghanistan, has the benefit of $7.5 million in donations from his billionaire father, a co-founder of the Carlyle Group, one the largest investment firms in the world. Also running in the Democratic primary are former prosecutor Donna More, who’s been endorsed by the Chicago Tribune, and former alderman and perennial candidate Bob Fioretti.
But there are questions around Conway’s handling of one of the few legal cases he’s had since leaving the state’s attorney’s office. After reading a news story last year reporting that a judge compared Candace Clark’s case to Smollett’s, Conway showed up at her next hearing and offered to represent her at no charge.
That was last May. Two months later, Conway announced he was running against Foxx. Clark’s case is a central talking point — he’s discussed it from the beginning of his campaign, it was the first thing he talked about at the Sun-Times editorial board meeting (14:45), and of course he’s made a commercial about it, now airing frequently thanks to his father’s money.
Clark’s case is not a perfect replica of Smollett’s. Not only is she not a prominent person, but her actions had a direct victim. Like Smollett, she filed a false police report, but her false report allegedly involved “funds that went missing from her bank account,” and her case involved allegations of check forgery. Like Smollett, she was offered a pre-trial resolution, but in her case it required restitution of missing funds. She’d have to report to court and meet certain conditions until that requirement was met, but if she did, her charges — like Smollett’s — would be dropped. Smollett, of course, forfeited $10,000 in bond as part of his resolution.
Conway appears to have negotiated down the amount of restitution from $2,500 to $1,200, but it’s not clear Clark’s public defender couldn’t have managed that. Other than that, the deal she took — the deal he’s now complaining about — is the deal he got her.
The fact that Conway is using Clark’s case to advance his political interests creates the very real risk of a conflict of interest, said Cynthia Godsoe, a professor at Brooklyn Law School and an expert in professional ethics. There’s no way to know what decisions might come up that might work to Clark’s favor but not Conway’s, she said. “That he’s advising her or pressuring her to make a commercial is very problematic,” she said. “He shouldn’t have any stake in this beyond being 100 percent focused on her interests and desires, and that’s just not the case when he’s using her in a commercial.”
The problem is that Clark’s case is still open. “A defense attorney would always advise a client not to speak publicly about their case while it’s still pending,” Godsoe said. “It’s inherently risky.”
Conway’s campaign didn’t respond to a request for comment.
Conway’s rush to aid Clark is particularly odd because he has not regularly practiced law since leaving the state’s attorney’s office in 2012. His response to the Sun-Times’ candidates’ questionnaire says only that, in addition to military service during that period, “I have continued to do pro bono criminal work,” with an interesting omission — no mention of any actual employment. When the candidates met with the editorial board, Foxx said Conway “had not represented anybody in criminal court since he left the state’s attorney’s office over six years ago.” (18:15) Conway responded, rather vaguely, “When I left the state’s attorney’s office, I did represent some folks after that, for whatever that’s worth.” (22:35)
The practice of law doesn’t seem to have been his primary focus during that period by any means, judging by his bio at DePaul’s business school, where he’s an adjunct instructor of finance. It looks like he was intent on following in his father’s footsteps in investment — and it looks like he had a little help from his father in that respect too. After leaving the prosecutor’s office, Conway got an MBA from the University of Chicago and worked at JPMorgan on mergers and acquisitions. He “currently runs a family-driven investment fund that is focused on growth equity, venture capital and public market investments,” according to the bio. It does not mention legal work at all subsequent to his time at the state’s attorney’s office.
Conway has found just one other incident, in addition to the Smollett case, on which to frame his narrative that Foxx’s office is overly politicized, and it’s a pretty thin reed. Foxx held a fundraising event at Ald. Ed Burke’s home during the 2016 campaign, and after she was elected, her office reached a settlement giving a $2 million property tax refund to AT&T, a client of Burke’s law firm. She gave Burke’s donation to nonprofits after he was indicted last year, but kept the other funds raised at the event.
The property tax settlement was fairly routine — Burke was seeking $16 million and got much less — and was based on an independent assessment done for the state’s attorney’s office, and Foxx had no involvement in the matter. It doesn’t look to me like there’s any “there” there, despite Conway’s blaring, insinuation-laden commercial.
It’s unfortunate that progressive politicians like Foxx feel they have to raise funds from anyone who is willing to give, but one reason they do is the persistence of wealthy candidates like Conway who have unlimited funds to distort the record. And for many voters, extremely wealthy individuals trying to buy elections are just as symptomatic of the system’s corruption. The fact that Conway’s money comes from a father who co-founded the Carlyle Group — which has been linked to insider dealing and pay-to-play politics in Illinois — doesn’t strengthen his position.
Distorting Foxx’s record of reform
There’s one other thing: it’s Candace Clark’s assertion in her commercial that “Bill Conway isn’t going to just look out for rich and famous people as state’s attorney.” The suggestion that Kim Foxx has neglected low-income people and minorities is a distortion of Orwellian proportions.
The Kim Foxx effect: how prosecutions have changed in Cook County
Foxx has begun the huge task of turning around the Cook County state’s attorney’s office — where not long ago prosecutorial misconduct contributed to our status as the nation’s wrongful convictions capital. Her Conviction Integrity Unit has resulted in mass exonerations, overturning 95 convictions to date linked to the corrupt Sgt. Ronald Watts, and giving Cook County a fair claim to now be the exoneration capital of the nation. She’s on track to expunge thousands of marijuana convictions.
Foxx has shifted resources away from low-level, nonviolent crimes, declining to prosecute more than 5,000 cases — mainly low-level shoplifting and drug possession charges — that would have been pursued under her predecessor’s policies, according to an analysis published by The Chicago Reporter and the Marshall Project last year. That means fewer people serving time for nonviolent offenses in our overcrowded prison system.
Foxx was elected as part of a wave of progressive prosecutors who pledged to address mass incarceration. The United States has the highest incarceration rate in the world, and our prison population is disproportionately black and Latino. A major factor is punitive prosecutorial practices along with “a severe lack of rehabilitation-focused discretion,” according to a new report by a local reform advocates, which looked at the racial impact of Foxx’s policies.
That report found that the number of African Americans and Latinos sent to prison under Foxx has fallen by 34%. It attributes lower incarceration rates in part to “the state’s attorney’s office moving away from a culture that rewards mass incarceration to one that values rehabilitation and outcomes rooted in justice.“
Looking at the more rigorous felony review process under Foxx and significant reductions in felony prosecutions for retail theft and drug offenses, the report finds “clear evidence that the Cook County state’s attorney’s office is on the right track in its use and pursuit of policies that are just, prudent, and aimed to counteract years of the draconian methods that have devastated communities of color for far too long.”
While there is far to go, that’s a solid start — and it’s a remarkable accomplishment for Kim Foxx. I don’t think any of her opponents can match it. On the big issues, and in the face of major challenges, she’s keeping her promises. That fact shouldn’t be lost in the fog of campaign commercials.