by Sam Rutherford

The Supreme Court of Illinois reversed and dismissed Empire actor Jussie Smollett’s felony disorderly conduct convictions because the State previously entered into a non-prosecution agreement with the actor in exchange for his promise to forfeit the bond he posted and complete community service. The Court held that a subsequently appointed special prosecutor lacked authority to override the non-prosecution agreement and reindict Smollett because doing so constitutes a due process violation.

Background

On January 29, 2019, Smollett told police that he was physically attacked outside his apartment building in Chicago. He claimed the attackers used racial and homophobic slurs. Investigators eventually determined that Smollett paid two acquaintances, brothers Olabinjo “Ola” Osundairo and Abimbola “Bola” Osundairo, $3,500 to stage the assault. The apparent motive was Smollett’s dissatisfaction with his TV studio’s failure to take hate mail he had received seriously.

In February 2019, the Cook County State’s Attorney’s Office filed a criminal complaint against Smollett for felony disorderly conduct. He turned himself into Chicago police the next day and posted a $10,000 bond. A grand jury subsequently returned a 16-count indictment against Smollett; he pleaded not guilty.

On March 26, 2019, the prosecution informed the Cook County Circuit Court it had reached an agreement with Smollett and made an oral motion to nolle prosequi (“nol-pros”), or dismiss without prosecution, the charges against him. An Assistant State’s Attorney explained, “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.”

The court granted the motion, finding that Smollett had complied with the terms of the agreement by preforming 15 hours of community service and agreeing to forfeit his $10,000 bond. The charges against Smollett were dismissed, and the court entered an order directing the clerk to transmit Smollett’s bond to the city’s Law Department.

This resolution triggered significant public outcry about leniency and favorable treatment afforded famous criminal defendants, including from former Chicago Mayor Rahm Emanuel and then-President and now President-Elect Donald Trump.

In April 2019, a retired appellate court judge filed a pro se motion to appoint a special prosecutor to “investigate and prosecute the People of the State of Illinois v. Jussie Smollett.” The circuit court granted the motion over the objection of the prosecutor’s office on June 21 and ordered that “a special prosecutor be appointed to conduct an independent investigation of the actions of any person or office involved in all aspects of the case.” Smollett also objected to the order, but the court subsequently appointed former U.S. Attorney Dan K. Webb as special prosecutor.

In February 2020, after a lengthy investigation by Webb’s office resulting in a 60-page report critical of the manner in which the Cook County State’s Attorney’s Office handled the case, a special grand jury indicted Smollett on six counts of felony disorderly conduct for the hoax. Smollett pleaded not guilty and subsequently moved to dismiss the indictment, arguing that his non-prosecution agreement with the State—the terms of which he had fulfilled—was an enforceable plea agreement barring the special prosecutor from reindicting him for the same offense.

The circuit court denied the motion. It concluded that when Cook County State’s Attorney, Kim Foxx, recused herself from overseeing Smollett’s prosecution, she had improperly appointed her first assistant, Joseph Magats, as the acting State’s Attorney; however, no such position exists under Illinois law. Instead, Foxx should have requested the court to assign a special prosecutor. Thus, the court concluded that the original nol-pros agreement was not entered into by a duly authorized prosecutor and was therefore a nullity, meaning that Smollett’s subsequent reindictment was not prohibited by the agreement.

The case proceeded to jury trial. Smollett was convicted on five counts and sentenced to 30 months’ probation, with the first 150 days to be served in the Cook County jail, and he was also ordered to pay a $25,000 fine and $120,106 in restitution to the city.

Smollett timely appealed, raising numerous issues, but the Illinois Court of Appeals affirmed his convictions and sentence in a 2-1 decision. Justice Freddrenna M. Lyle dissented, reasoning that the State’s nol-pros agreement with Smollett was tantamount to a plea agreement, which prohibited his reindictment. The Illinois Supreme Court granted review.

Analysis

The Court addressed only one issue on review—whether the non-prosecution agreement Smollett entered into with the State should be enforced. In the seminal case of Santobello v. New York, 404 U.S. 257 (1971), the U.S. Supreme Court held that when a defendant’s guilty “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.” Courts have since applied this general principle to a variety of contexts outside the traditional setting of guilty plea agreements.

For example, in People v. Starks, 478 N.E.2d 350 (Ill. 1985), the State agreed to dismiss the charges against a defendant if he passed a polygraph examination, but it failed to do so. The court ordered an evidentiary hearing to determine whether such an agreement existed and, if the answer was yes, instructed the circuit court to enforce it. As the Starks Court explained, “The prosecution must honor the terms of agreements it makes with defendants. To dispute the validity of this precept would surely result in the total nullification of the bargaining system between the prosecution and the defense.” Specifically, the defendant relinquished something of “constitutional significance,” i.e., his privilege against self-incrimination by submitting to the examination.

Similarly, in People v. Stapinski, 40 N.E.3d 15 (Ill. 2015), the defendant entered into a valid oral cooperation agreement that, if the defendant cooperated in the arrests of certain individuals, he would not be charged. The defendant fulfilled his end of the bargain, incriminating himself in the process, but the State charged him anyway. The circuit court concluded that the State violated the defendant’s right to due process as well as the cooperation agreement and dismissed the indictment. The Illinois Supreme Court affirmed, recognizing that cooperation agreements must be honored both as a matter of due process and under contract law principles.

The Stapinski Court rejected the argument that the agreement was not binding because it was made orally by police rather being reduced to writing by a prosecutor. Rather, an “unauthorized promise may be enforced on due process grounds if a defendant’s reliance on the promise has constitutional consequences.” The constitutional consequence to the defendant in that case was fundamental fairness—an essential element of due process. Thus, dismissal was appropriate because the defendant’s due process rights were violated when the State breached its agreement with him.

Turning to the present case, the Court explained that the case law mandates that the reinstated charges against Smollett should have been dismissed if they were originally “dismissed as part of an agreement with the State in which he fully performed his end of the agreement.” The State contended, however, that no such agreement existed and that Smollett had performed community service and forfeited his bond as charitable and voluntary acts with the hope that he might garner favor with the prosecutor’s office. However, the record belied this assertion.

To begin with, the prosecutor clearly stated during his oral nol-pros motion that the case was being dismissed in response to Smollett’s “agreement to forfeit his bond” and that the State believe this was “an appropriate resolution.” Moreover, the special prosecutor’s report prepared after charges were dismissed and then reinstated specifically referenced “the agreement” negotiated between Smollett’s lawyers and prosecutors, and a press release issued by the Cook County State’s Attorney’s Office expressly stated the charges against Smollett were dropped in return for his agreement to perform community service and forfeit his bond. “Without the completion of these terms, the charges would not have been dropped,” the release stated.

The Court determined that the terms of the State’s agreement were made equally clear from both the press release and the special prosecutor’s report. Although the report was highly critical of the agreement, it unequivocally found that agreement contemplated (1) complete dismissal of the original 16-count indictment, (2) no requirement that Smollett plead guilty to any crime, (3) no requirement that he admit guilt, (4) Smollett’s only punish was to perform 15 hours of community service, and (5) Smollett’s forfeiture of his $10,000 bond despite the city having spent over $130,000 to investigate the alleged crime. These, the report concluded, were the “terms of the dismissal.”

Next, the State attempted to avoid the mandatory nature of its agreement with Smollett by contending that it did not contemplate a final resolution of the case by pointing to the fact that nol-pros dismissals are not considered final dispositions in criminal cases and do not bar another prosecution for the same offense under Illinois law. See People v. Milka, 810 N.E.2d 33 (Ill. 2004). But again, both the prosecutor’s words used to support the State’s nol-pros motion and the special prosecutor’s report showed otherwise, according to the Court. The prosecutor clearly stated that the agreement was “an appropriate resolution” in Smollett’s case, and “page after page” of the special prosecutor’s report indicated that the State viewed the case as “resolved.” Moreover, the Court noted that “it defies credulity” to believe Smollett would forfeit a $10,000 bond believing that the State “could simply reindict him the following day.” Thus, the Court concluded that the parties “intended finality” with respect to the agreement. 

Importantly, the Court explained that because Smollett’s “case involves an agreement to dismiss charges in exchange for defendant doing something and defendant did what the agreement required, Starks and Stapinksi” require that the reinstated indictment be dismissed. Under the foregoing case law, the Court stated to “allow the State to renege on the deal and bring new charges would be fundamentally unfair and offend basic notions of due process.” The State attempted to distinguish those cases by noting that the defendants in them surrendered constitutional rights in exchange for dismissal; whereas, Smollett merely surrendered money and performed a few hours of community service. But this is a distinction without a difference, according to the Court.

The Court explained that nothing in Starks or Stapinksi’s “discussion of why the defendant’s due process rights were violated by the State’s breach of the agreement did the court say anything to suggest that the only enforceable agreements with the State are those in which the defendant waives a constitutional right as consideration.” Instead, both cases focused on the fundamental unfairness of the State refusing to uphold an agreement the defendant relied upon to his detriment. “Clearly, the State reneging on a fully executed agreement after defendant had forfeited a $10,000 bond in reliance on the agreement would be arbitrary, unreasonable, fundamentally unfair, and a violation of the defendant’s due process rights,” declared the Court. Citing, inter alia, Commonwealth v. Cosby, 252 A.3d 1092 (Pa. 2021).

Then, the State argued that the special prosecutor’s reinstatement of charges was proper even if the Court determined that the original prosecutors and Smollett’s attorneys intended to enter into an agreement with finality because Illinois law has long held that nol-pros dismissals are not final dispositions that bar future prosecutions. However, the Court stated the rule that a defendant may be re-prosecuted after a nol-pros dismissal has never been “absolute” and must be reconciled with case law holding “that it is fundamentally unfair to allow the prosecution to renege on a deal with a defendant when the defendant has relied on the agreement to his detriment.”

Relying on State v. Kallberg, 160 A.3d 1034 (Conn. 2017), the Court resolved this apparent conflict by emphasizing the difference between a nol-pros dismissal stemming from the unilateral decision by the State and “one that is entered as part of a bilateral agreement with the defendant.” In that latter situation, the State must honor its agreement. To hold otherwise would create “terrible policy consequences” by completely undermining the validity of the plea-bargaining process, the Court stated, adding, “Case law thus establishes that, if a dismissal is entered as part of a nonprosecution agreement between the State and the defendant, the manner of the dismissal is not important.”

Finally, the Court addressed the circuit court’s reasoning that Smollett’s re-indictment is not barred because the prosecutors who negotiated the nol-pros dismissal agreement with his attorneys were not properly appointed under Illinois law. The Court rejected that argument, explaining that Illinois appellate courts have long held that the “right to be prosecuted by someone with proper prosecutorial authority is a personal privilege that may be waived if not timely asserted in the circuit court.” People v. Woodall, 777 N.E.2d 1014 (Ill. App. Ct. 2002). That is, “[t]he proper prosecutor rule exists to protect defendants, not to allow the State to take advantage of its own errors to get a do-over,” the Court admonished.

Conclusion

Accordingly, the Court reversed Smollett’s convictions and remanded the case to the circuit court for it to dismiss the underlying indictment with prejudice. See: People v. Smollett, 2024 Ill. LEXIS 707 (2024).

Editor’s note: Anyone interested in the topic of the enforcement of non-prosecution agreements generally is encouraged to read the Court’s full opinion.

Unsurprisingly, media outlets that are unhappy with the result in this case are predictably claiming that Smollett got off on a “technicality,” which is the go-to pejorative term used to describe the alleged reason for an unwelcomed case outcome by the media and the general public. However, the so-called technicality in this case is nothing less than the safeguarding of the constitutional right to due process. This same scenario played out when the Pennsylvania Supreme Court vacated Bill Cosby’s convictions and ordered his immediate release because his fundamental right to due process was violated.

The Cosby opinion was covered in the August 2021 issue of CLN. Our commentary then applies with equal force to the current case: “The criticism and outrage at the Pennsylvania Supreme Court’s June 30, 2021, decision to vacate Bill Cosby’s convictions, order his immediate release, and bar any retrial are largely ill-informed or just plain misguided. Those decrying the fact that Cosby got released on a so-called ‘technicality’ apparently believe that fundamental constitutional rights are mere technicalities, or more likely, most are simply ignorant of the actual legal principles and reasoning upon which the Court based its decision. The Court in no way ruled upon Cosby’s factual guilt or innocence. Instead, what it did do was safeguard important constitutional rights that protect us all, from the most sympathetic among us to the wildly unpopular, against government abuse and overreach.”  

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