Since the dust has mostly settled in this controversial episode, now is a good time to look at the legal and technical aspects of the Jussie Smollett case in nearby Illinois.
The saga began in January 2019, when Mr. Smollett reported a hate crime to Chicago police. He said that two white men wearing MAGA (Make America Great Again) hats used homophobic and racial slurs as they assaulted him. A few weeks later, following an extensive investigation, police investigators claimed that Mr. Smollett engineered the attack on himself to improve his visibility. They charged him with sixteen felony counts, including filing a false report.
About a month later, Cook County prosecutors dismissed the charges. They also sealed part of the record in the case. The sudden and unexpected move prompted many people to claim that Mr. Smollett received preferential treatment.
State prosecutors have the authority to unilaterally dismiss criminal cases “in the interest of justice.” This murky phrase typically means that the matter did not jive with the head prosecutor’s political or other agenda. However, that’s not what happened in this case.
Instead, Cook County State’s Attorney Kim Foxx conditionally dismissed the charges against Mr. Smollet. He forfeited his cash bond to the City of Chicago and he must also perform community service. Arrangements like these are very common in Illinois, Minnesota, and pretty much everywhere else. You do not have to be famous to get pretrial diversion. It is very common in non-violent misdemeanors if the defendant has no criminal record.
If the state’s evidence is weak, St. Paul criminal defense lawyers might be able to get pretrial diversion in a violent misdemeanor as well, such as assault or DUI. Alternatively, prosecutors may reduce these charges to a lesser-included offense, like reckless conduct or reckless driving.
However, pretrial diversion is rather unusual in felony cases. It’s also unusual if the defendant has not made complete restitution, which according to the Chicago Police Department, is over $100,000. So, most St. Paul criminal defense lawyers are not surprised that Ms. Foxx’s move raised some eyebrows.
Ms. Foxx may have also granted pretrial diversion because, if the matter had moved forward, Mr. Smollett would have almost certainly pleaded guilty and received probation. Voluntary guilty or no contest pleas resolve over 90 percent of the criminal cases in both Cook County and Ramsey County. Such pleas often include the aforementioned reduced charges. They nearly always include probation or a greatly reduced prison sentence.
Quite often, probation also includes deferred disposition. In these cases, the defendant pleads guilty or no contest, the judge places the defendant on probation, but the judge does not enter a finding of guilt. Instead, the judge defers this part of the proceeding until the probation ends. At that point, assuming the defendant had a reasonably clean probation record, the judge dismisses the charges.
As mentioned, pretrial diversion is rare in felony cases. It is even more unusual for a prosecutor to seal part of the file. This part of the Smollett case has led many people to believe that the prosecutor had something to hide.
Generally, expungement or sealing is a separate matter. Deferred disposition only eliminates the conviction record; the arrest record remains. Typically, if the defendant received a favorable disposition (dismissal, pardon, not guilty verdict, etc.) expungement or sealing may be an option if:
Briefly, record expungement means that all law enforcement, judicial, and other records are destroyed. Sealing means that these records still exist, but only certain people can view them.
To increase the chances of a successful expungement or sealing petition, St. Paul criminal defense lawyers often file a motion for early discharge from probation while the defendant is still under court supervision. That’s basically a finding of good conduct and that expungement would be in everyone’s best interests.
You do not have to be a movie star to get your charges dismissed and your record expunged. For a free consultation with an experienced St. Paul criminal defense lawyer, contact Capitol City Law Group, LLC. Go online now, call us at (651) 998-7634, or stop by 287 6th St E, Suite 20, St Paul, MN 55101.