Washington Post Column: Jussie Smollett is “Just Another Black Man Serving Time-in a System More Perverted than his Crime.”

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The Washington Post yesterday ran a column by MSNBC Legal Analyst and Georgetown Law Professor Paul Butler that argued that the incarceration of actor Jussie Smollett for 150 days is a miscarriage of justice fueled by racism. Butler declares that Smollett is “just another Black man serving time — in a system more perverted than his crime.” The Washington Post column repeats a number of legal assertions that have been refuted by the special investigator, prosecutors, the court, and others about the case.The Smollett case continues to generate good-faith debates over its meaning and implications for the legal system. Professor Butler has long advocated reforms in that system, including his call for Black jurors to engage in jury nullification in some cases involving Black defendants. Butler wrote in the Washington Post in 2016: “Confronting the racial crisis in criminal justice, jury nullification gives jurors a special power to send the message that black lives matter.”

However, the Washington Post column would, in my view, leave readers with a strikingly false impression of the facts and findings in the case.

At the outset, it is important to note that Professor Butler acknowledges that he does not think Smollett told the truth about being the victim of a hate crime.  Moreover, the fact that Smollett was originally given a plea in exchange for dropping further prosecution is notable. There is a legitimate concern when any defendant is prosecuted after such a plea agreement, though this case was investigated because the plea was the result of special dealing and favoritism.

However, Butler proceeds to insist that this case is materially the same as thousands of others that were treated differently because of Smollett’s race.

“The charges were dropped in exchange for community service and surrender his $10,000 bond — an appropriate result for a first-time offender in a nonviolent crime. But that wasn’t enough for many White people — and some Black people as well— who wanted a pound of Smollett’s flesh.”

It was not “an appropriate result” but a result that was secured through special treatment by State’s Attorney Kim Foxx’s office to drop 16 counts. Most legal experts, including myself, expressed shock at the level of favoritism displayed by Foxx and her office in dealing with the star.

Smollett had used his contacts in the media to portray himself as the victim of a racist society. As we discussed earlier, Vice President Kamala Harris, then a U.S. senator, denounced what happened as an “attempted modern-day lynching.” House Speaker Nancy Pelosi (D-Calif.) said it was a “homophobic attack and an affront to our humanity.” In a fawning interview, ABC’s Robin Roberts described Smollett as “bruised but not broken” and breathlessly concluded the segment with “Beautiful, thank you, Jussie.”

Even when evidence mounted that this was a hoax, some media figures lashed out at Smollett’s doubters. ABC’s “The Talk” host Sara Gilbert was irate: “I find so personally offensive that a gay Black man is targeted and then suddenly he becomes the victim of people’s disbelief.”

Moreover, Professor Butler is ignoring the extensive findings of a long investigation and the views of the court that this was neither consistent with past cases nor justice. The Washington Post column simply repeats the talking point of Foxx, who was completely discredited in claiming that the Smollett case was “the treatment we’ve given to about 5,700 other people over the course of the last two years.”

Special investigator Dan Webb shredded that claim, which has found a new life in the Washington Post. As we discussed at the time, Webb found that Foxx lied to the public and misrepresented past cases. The report states specifically addressed and refuted the claim raised by Butler:

“The CCSAO attempted to find anecdotal evidence of similar resolutions to support its public narrative that its resolution of the initial Smollett case was not an outlier, but struggled to find any similar cases resolved in a similar manner (let alone thousands as was implied by the Dismissal Press Statement).”

The National District Attorneys Association also refuted the claim:

“The manner in which this case was dismissed was abnormal and unfamiliar to those who practice law in criminal courthouses across the State. Prosecutors, defense attorneys, and judges alike do not recognize the arrangement Mr. Smollett received. Even more problematic, the State’s Attorney and her representatives have fundamentally misled the public on the law and circumstances surrounding the dismissal.

…The appearance of impropriety here is compounded by the fact that this case was not on the regularly scheduled court call, the public had no reasonable notice or opportunity to view these proceedings, and the dismissal was done abruptly at what has been called an “emergency” hearing. To date, the nature of the purported emergency has not been publicly disclosed. The sealing of a court case immediately following a hearing where there was no reasonable notice or opportunity for the public to attend is a matter of grave public concern and undermines the very foundation of our public court system.

…Lastly, the State’s Attorney has claimed this arrangement is “available to all defendants” and “not a new or unusual practice.” There has even been an implication it was done in accordance with a statutory diversion program. These statements are plainly misleading and inaccurate. This action was highly unusual, not a statutory diversion program, and not in accordance with well accepted practices of State’s Attorney initiated diversionary programs. The IPBA supports diversion programs, and recognizes the many benefits they provide to the community, the defendant and to the prosecuting agency. Central to any diversion program, however, is that the defendant must accept responsibility. To be clear here, this simply was not a deferred prosecution.”

There were not “thousands of cases” like this one. The Special Investigation was initiated precisely because this was an irregular action taken in favor of a well-connected celebrity. Yet, Butler insists that he was railroaded due to his race despite overwhelming evidence of special treatment due to his connections. Butler claims “he is just another Black man serving time — in a system more perverted than his crime.”

While insisting that people could not get beyond Smollett’s race, Butler tags Webb — one o the most respected prosecutors in the country — for his race:

“So a White male lawyer in private practice was handed more control over a criminal case than the Black female prosecutor elected to make those kinds of decisions. But Webb’s decision to throw the book at Smollett didn’t just undermine the legitimacy of the system. Public safety took a hit too.”

What is most striking about the Washington Post column is the claim that it is Smollett’s brief jail term — not his hoax — that will undermine future cases of racist attacks:

“Sending a Black gay man to jail for lying about being attacked will not encourage hate crime victims to come forward. Instead, it sends the message that they, rather than their assailants, are subject to being incarcerated if authorities don’t believe their stories.”

I would think that the greater damage is promulgating a craven and sensational hoax that cost the city and the police a fortune while risking that others may doubt for such claims in the future.

Smollett not only refused to admit his guilt at his original plea agreement, he took the stand and lied repeatedly, including lying and attacking the two black men who conspired with him in the hoax. He then continued to lie at sentencing and claim that he was in fact attacked by white men wearing MAGA hats.

Jussie Smollett is not “just another Black man serving time — in a system more perverted than his crime.” He is a man who manipulated that system with the assistance of the media and powerful friends. He is still doing that.

 

 

 

 

173 thoughts on “Washington Post Column: Jussie Smollett is “Just Another Black Man Serving Time-in a System More Perverted than his Crime.””

  1. Oh for heaven’s sake. His ploy of maintaining his innocence in spite of a tsunami of evidence is actually working with some people.

    Jussie Smollett perpetrated a hate crime against white Republican voters. If there had actually been a couple of white guys with MAGA hats on anywhere in that city, they might have been killed by an angry mob, pointed by Smollett. If there were any men in the vicinity who matched the description, how far would Smollett have taken this farce? Is he racist enough that he would have sent innocent men to prison?

    I believe punishment should fit the crime. He should serve the same sentence he would have inflicted upon the innocent victims of his racism.

    Hoaxes like Smollett underline the fact that the US is not systemically racist against black people. If it were, they wouldn’t have had to resort to a hoax.

  2. If the motive of Smollett in concocting this threatrical infowarfare was to dupe the American public into thinking a violent hate crime had been perpetrated, how is this “a non-violent” crime? Smollett wanted the widespread belief that ugly violence had occurred. His crime was violence-spoofing.

    Do we want this kind of deceptive theatrical infowarfare to become normative in America? Absolutely not.

    We may need to devise “false-flag” law, which makes it easier to prosecute, and harder to defend, spoofing at the level Jussie attempted.

  3. Georgetown Law Professor Paul Butler’s legal reasoning is sound. After all, OJ Simpson was found not guilty after murdering his ex-wife Nicole Brown Simpson and her friend Ronald Goldman by an erudite jury that carefully weighed all the evidence. So why should Jussie Smollett not be given a pass for a lesser offense than a double murder? However, Butler does not go far enough. Smollett must be paid reparations of $1.5 million to correct the injustice against him by our racist legal system. I’m certain that Judge Ketanji Brown Jackson concurs. And that should be good enough for everyone.

    1. JFeldman – I watched the OJ Simpson trial gavel-to-gavel and I found him not guilty, too. The state did not make their case. Besides a couple of the investigators perjuring themselves.

      1. Gavel-to-gavel in the Simpson case is impressive. My knowledge of that case is based on documentaries, which typically present a point-of-view, even if they attempt to show both sides of the story. However, a relatively recent interview with one juror indicated that certain jurors saw that case as an opportunity for “payback” for the result in the earlier trial of police in the Rodney King case.

        1. JFeldman:

          I was very slightly acquainted with the Goldman family. Fred told me about evidence that was not allowed at the trial. He had thousands of dollars, a passport, and a disguise in that Bronco. He wasn’t suicidal; he was fleeing.

          As a horseback rider, I was shocked at the misstep by the prosecution about the gloves. If I forgot to clean and oil my unlined show gloves before putting them away, they would be shriveled balls by the next show. Horse and human sweat (and by extension, blood), affects thin leather. I used to have to oil them, gradually working them on my hands, until they were supple and fit me again.

          Commanding OJ Simpson to put on the gloves used in the murder was a mistake that must haunt them. Of course the gloves would be stiff. They’d been in an evidence bag with dried blood.

          In addition, if you are a criminal who doesn’t want to admit that a glove is yours, then you widen your fingers and pretend you can’t get it on.

          Those gloves were his brand and his size. Of course they would fit if they didn’t have dried blood and sweat on them, and he was actually trying to get them on.

          I don’t blame any juror who was swayed by the compelling “if the glove don’t fit, you must acquit” line. It was a major prosecution blunder. But I do condemn any juror who found OJ innocent as some sort of “payback.” That’s the definition of injustice, punishing the innocent because you can’t get your hands on the guilty. Ron and Nicole deserved impartial justice.

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