Late last year, the Supreme Court of Illinois overturned former actor Jussie Smollett’s hate-crime hoax conviction.[1] The court reasoned that because Smollett and local prosecutors had agreed to a nolle prosequi (an agreement to abandon prosecution without dismissing the charges), it was “fundamentally unfair” for a special prosecutor to indictment him after the case was removed from the local prosecutors’ hands.[2]

Although the foundational rule undergirding the decision—that the state may not renege on a nolle prosequi—seems to be a reasonable extension of state case law, the decision is, nevertheless, missing important analysis. Specifically, the court does not consider whether a valid agreement actually existed between the state and Smollett, despite the trial court’s ruling that the prosecutor who made the agreement lacked any valid authority to prosecute the case.

If that ruling was correct, then the prosecutor in charge might have had no authority to make the non-prosecution agreement with Smollett, and so no valid agreement existed that could be reneged. The Illinois Supreme Court failed to address this point, leaving the public wondering if its decision is correct.

The details

Acting State’s Attorney Joseph Magats gave Smollett a nolle prosequi after the Cook County State’s Attorney, Kim Foxx, announced that she was recused from the case.[3] Although Foxx continued to exert influence over the case through text messages,[4] she appointed Magats to be the Acting State’s Attorney and to run the case with full authority.[5]

Pursuant to that authority, Magats agreed to the nolle prosequi if Smollett would forfeit the $10,000 bond to the city of Chicago, which he did.[6] The trial court, however, found a major problem with Magats’s appointment: “Foxx had appointed Magats to an entity that did not exist because there is no legally cognizable office of ‘Acting State’s Attorney.’”[7] As a result, the trial court ruled “that there was no duly elected state’s attorney of Cook County when [Smollett] was arrested, charged, indicted, or arraigned and that there was no state’s attorney in the courtroom when the nolle prosequi was entered.”[8]

The remedy mandated by state law, the trial court held, was the appointment of a special prosecutor.[9] The judge appointed one, and that prosecutor re-indicted Smollett for several counts of disorderly conduct stemming from his hate crime hoax. That hoax involved Smollett hiring two Nigerian brothers to pretend to be “pale-skinned” supporters of President Donald Trump, shout racist and anti-gay slurs at him, pour bleach on him, hang a noose around his neck, and shout, “This is MAGA country.”[10]

A jury found that Smollett had, indeed, perpetrated the hoax and found him guilty of five counts of felony disorderly conduct.[11] The trial court sentenced Smollett to 30 months’ probation, 150 days of jail time, and ordered him to pay a $25,000 fine and $120,106 in restitution to the city.[12]

Smollett appealed, arguing that state case law barred the state from reneging on a nolle prosequi when he had complied with his part of it.[13]  The intermediate appellate court rejected Smollett’s appeal because a nolle prosequi is not a final disposition that bars a second prosecution and because no Illinois court had ever held that the state can bargain away its right to bring a second prosecution after a nolle prosequi.[14]

The Illinois Supreme Court reversed, holding that the record in Smollett’s case showed that the prosecutor intended that Smollett’s nolle prosequi would, indeed, be the final disposition of the case, and that principles of “fundamental fairness” and contract law applied to a nolle prosequi and barred the government from reneging on a final decision not to prosecute.[15]

The court held that “it would be a breach of the public faith to not hold the government to its word.”[16]  Moreover, older precedents in similar contexts held that the State’s Attorney as “an elected representative of the People” has a duty to “honor the terms of agreements it makes with defendants.”[17]

Missing from the court’s analysis, however, is any discussion of whether the trial court was correct that there was no valid agreement between the state of Illinois and Smollett if Acting State’s Attorney had no lawful power over his case.

The Illinois Supreme Court never answers that question. In a passing line about another case involving an agreement between the police and a defendant, the court said that “it did not matter whether the agreement was valid,” but the court gives that point no additional attention in Smollett’s case.[18] It does not say whether that principle extends to different sorts of agreements or to agreements made with unlawfully appointed prosecutors, whether that principle is limited to the unique facts of that case, or whether it applies to Smollett’s case, and, if so, how.

Repeatedly, the court says that if a defendant relies on an agreement made “by the state,” by “the people,” or by “duly constituted authorities,” then the state cannot renege on the agreement. But nowhere does it say that a valid agreement existed between Smollett and the state. 

In sum, the opinion holds that the state must honor nolle prosequi agreements, without answering the lower court’s ruling that no such valid agreement existed here.

[1] People v. Smollett, 2024 IL 130431, 2024 WL 4847704.

[2] Id. at ¶ 56.

[3] Id. at ¶¶ 7–9.

[4] Shannon Heffernan & Miles Bryan, State’s Attorney Closely Followed Smollett Case After Recusal, Text Messages Show, NPR, April 17, 2019, https://www.npr.org/2019/04/17/714187032/states-attorney-closely-followed-smollett-case-after-recusal-text-messages-show.

[5] People v. Smollett, 2024 IL 130431 at ¶ 9.

[6] Id. at ¶ 6.

[7] Id. at ¶ 9 (quoting the trial court ruling).

[8] Id.

[9] Id. at ¶ 9.

[10] See, e.g., Maya Yang, Jussie Smollett Calls Attackers Who Claim He Stated Hate Crime ‘Liars,’ The Guardian, Dec. 7, 2021, https://www.theguardian.com/us-news/2021/dec/07/jussie-smollett-trial-witness-stand-claim-staged-attack-100-percent-false (reporting Smollett’s testimony in which he said that his attackers were likely white because they were “pale-skinned.”).

[11] People v. Smollett, at ¶ 13.

[12] Id.

[13] Id. at ¶ 14.

[14] Id.

[15] Id.

[16] Id. at ¶ 23.

[17] Id. at ¶ 25.

[18] Id. at ¶ 32.

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