CNN  — 

Kim Foxx took the helm of the nation’s second-largest prosecutor’s office four years ago by ousting an incumbent heavily criticized for her handling of the Chicago police killing of a black teenager who was shot 16 times.

Tuesday, voters will decide whether Foxx’s questionable handling of another high-profile case – a racist and homophobic attack allegedly staged by former “Empire” actor Jussie Smollett – should stand in the way of a second term as Cook County state’s attorney.

The important down-ballot primary – taking place amid the coronavirus outbreak – is viewed as a test of the durability of a wave of progressive prosecutors elected across the country with vows to reform what they call an unfair criminal justice system.

“The question will be, ‘Are we committed to these reforms long term or was this just a trend?’” Foxx, 47, said in an interview.

Actor Jussie Smollett speaks to reporters at the Leighton Criminal Courthouse in Chicago after prosecutors dropped all charges against him, Tuesday, March 26, 2019. (Ashlee Rezin/Chicago Sun-Times via AP)
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Her Democratic rivals and other critics, including the police union, have made her handling of the Smollett case the focus of the race. They have tried to overshadow a record of reform praised by some experts, including the expunging of marijuana convictions, targeting gun violence and moving away from prosecuting non-violent offenses such as shoplifting.

“This race is a test of the political durability of these progressive prosecutors … to see if their message continues to resonate with voters,” said Thomas Ogorzalek, a political science professor at Northwestern University.

Foxx’s challengers are former assistant state’s attorney Bill Conway, whose campaign was bankrolled by his billionaire father; former federal prosecutor Donna More and former Chicago Alderman Bob Fioretti.

Foxx admits fault in her handling of Smollett case

Foxx’s progressive policies had already put her in the crosshairs when her office suddenly decided in March 2019 to drop all 16 counts of felony disorderly conduct against Smollett, leading to accusations of political favoritism on her part. Smollett forfeited $10,000 in bail money and did community service.

The prosecutor, who recused herself from the case, came under fire for contact with Smollett family friend Tina Tchen – a former chief of staff for first lady Michelle Obama and a lawyer – before he charges were dropped.

Smollett, who is gay and black, said he was the victim of a racist and homophobic attack near his Chicago apartment on January 29, 2019.

Police investigated the case as a hate crime but later said the actor orchestrated the attack and paid two acquaintances – brothers Olabinjo and Abimbola Osundairo – to stage the incident for publicity. The actor has repeatedly denied making up or orchestrating the assault.

Still, a Cook County grand jury in February returned a six-count indictment against Smollett for making false reports to police that he was a victim of a hate crime, according to Dan K. Webb, a special prosecutor who investigated how local prosecutors handled the case.

Webb said his office had “sufficient factual evidence to determine that it disagrees” with Foxx’s handling of the case. In a statement, Webb said Foxx was unable to provide “documentary evidence” showing “other dispositions of similar cases prior to the Smollett case that would justify this disposition.”

Foxx has admitted fault in her office’s handling of the case and said it could have been more transparent. But she blasted Webb’s decision to indict Smollett weeks before the primary election as political.

“For the average citizens who live in communities impacted by violence … Smollett is not an issue for them,” she told CNN. “I’ll have to answer for it. I’m accountable to it but I’m also accountable that our system is fair and just to everyone.”

Rival says Foxx’s handling of actor’s case violated public trust

The Smollett case has dominated the campaign.

“With Jussie Smollett, the State’s Attorney showed that the politically connected get better deals than other people,” Conway said in a questionnaire published by the Chicago Sun-Times last month.

“The State’s Attorney is supposed to be a beacon of public trust so people do not lose faith in the criminal justice system and clearly that trust was violated,” he added.

Fioretti wrote that Foxx “treated Smollett differently than others because of his celebrity” and “brazenly lied to the people of Cook County.”

More told CNN, “I’m running to bring a balance to make sure the most dangerous among us are off our streets and not to criminalize poverty by keeping people in jail, awaiting trial who don’t have a violent record and have shoplifted something.”

mayor rahm emanuel jussie smollett presser 2
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One of Foxx’s harshest critics has been the Chicago Fraternal Order of Police, whose second vice president, Martin Preib, blamed Foxx for the “absolute breakdown in the criminal justice system in Cook Country,” CNN affiliate WTTW reported.

He added, “In almost any other city, the notion of a scandal-plagued prosecutor like Kimberly Foxx running for reelection could not be seriously entertained.”

Foxx dismisses the criticism, especially when compared against her overall record in office.

“We’re talking about one case, a low-level, non-violent offense where an actor played a prank in a city that is grappling with violence, in a city that was known as the false confession capital of the United States, in a city that has paid almost a billion dollars in police misconduct lawsuits over the last decade,” she said.

Foxx accuses opponents of using ‘rhetoric of the Willie Horton era’

Foxx, who grew up in Chicago’s Cabrini Green housing projects, in 2016 defeated incumbent Anita Alvarez, whose tenure as top prosecutor was upended by the police shooting death of Laquan McDonald two years earlier. Cops were accused of trying to cover up the death of the black teenager.

She became the first black woman to head the prosecutor’s office, drawing praise from criminal justice experts for exonerating the wrongfully convicted, increasing the standard for felony shoplifting from a minimum of $300 to $1,000 in stolen goods, and creating a gun crimes unit that put prosecutors to work in police districts with highest rates of violence.

“There is a sense of, ‘Are these progressive prosecutors people who can win reelection or not?’” said John Pfaff, professor at Fordham Law School. “She is one of the first progressive prosecutors elected and she has lived up to a lot of her promises.”

Dick Simpson, a political science professor at University of Illinois at Chicago and a former alderman, said Foxx’s achievements have been “totally overshadowed” by her handling of the Smollett case.

“She’s helped reform the criminal justice system … in a way that has helped minority communities and ended up being less of a burden on the county,” he said.

Said Foxx, “Some of my opponents who use the rhetoric of the Willie Horton era, of fearmongering and law and order, do that dismissing the reality of the work we do every day … and are actually quite comfortable with the fact that we were incarcerating black and brown people at disproportionate rates for things that were not in the interest of public safety.”