Page 68 - FOP June 2019 Magazine

68 CHICAGO LODGE 7 ■ JUNE 2019
An article submitted by a Lodge 7 Magazine Sponsor
Can civil courts deliver justice in the Jussie Smollett case?
If you’ve followed the schizophrenic case of the al- leged hate crime against “Empire” actor Jussie Smol- lett, you know that it continues to rankle all involved. While the criminal case was inexplicably dropped, more than one interested party is seeking justice through the civil justice system.
The case struck a nerve on a visceral level. Cultur- al and political constituencies squared off against each other: citizens vs. police, black vs. white, gay vs. straight. An allegedly innocent black man — a celeb- rity to boot — who was violently attacked with racial and homophobic animus propelled our criminal jus- tice system into action.
The Chicago Police Department expended vast resources to answer the public outcry and successfully uncovered virtually ir- refutable evidence that Mr. Smollett set up this crime to further his own interests.
The public was shocked that it was likely all a hoax in a grab for fame. Arrests were made, media interviews given and deals artfully and quietly crafted. Smollett was quickly in and out of jail and the charges were somehow dropped. Since then, everyone has been seeking answers.
With no other recourse, the Chicago Police Department turned to a much-maligned civil court system to recoup the more than $130,000 expended on the investigation. The two brothers ac- cused in the attack have also sued Smollett and his attorney for defamation.
Smollett’s lawyer fired back, threatening to demand the release of the entire police investigation as well as seeking to take the depositions of outgoing Mayor Rahm Emanuel, Police Superin- tendent Eddie Johnson and others, including the brothers and their lawyers.
In civil litigation, this portends nothing new or ominous, just discovery — the painstaking and relentless unraveling of the facts to get to the truth. And exposing the truth is precisely what this case needs.
Notably, this is not the first time high-profile criminal cases have been litigated in civil courts. O.J. Simpson was famously ac- quitted of murdering his wife and Ron Goldman, only to be found guilty in a civil wrongful death case and ordered to pay damages to the families.
The civil justice system involves monetary remedies and not criminal penalties, so the burden of proof “by a preponderance of the evidence” is lower in civil cases than the “beyond a reason- able doubt” standard required in criminal cases. Also, the rules of evidence are different in civil court and arguably less stringent. The discovery process is usually longer and more liberal for many reasons, including the absence of a constitutional imperative to provide swift justice and a speedy trial guaranteed by the Sixth Amendment.
So, as this infuriating case moves into the civil courts, where I have practiced for more than 25 years, it is important to real- ize that Smollett has not completely escaped responsibility. Even though the criminal case is dead, the civil case lives on. I have handled many civil cases in Cook County and am confident that this case will inevitably uncover the truth.
Although forcing Smollett to pay his $130,000 debt is a laudable goal, revealing the truth and establishing that the Chicago Police Department was correct all along will be far more valuable.
Ted McNabola is the founding partner of McNabola & Associates, serves on the Board of Directors of the 100 Club of Chicago and has been named a Top 100 Consumer Attorney in Illinois.
TED McNABOLA CIVIL LITIGATION