People v. Smollett

2024 IL 130431

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 130431)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

JUSSIE SMOLLETT, Appellant.

Opinion filed November 21, 2024.

JUSTICE ROCHFORD delivered the judgment of the court, with opinion.

Justices Neville, Overstreet, Holder White, and O’Brien concurred in the

judgment and opinion.

Chief Justice Theis and Justice Cunningham took no part in the decision.

OPINION

¶1 “The public justifiably expects the State, above all others, to keep its bond.”

Bowers v. State, 500 N.E.2d 203, 204 (Ind. 1986).

¶2 Today we resolve a question about the State’s responsibility to honor the

agreements it makes with defendants. Specifically, we address whether a dismissal

of a case by nolle prosequi allows the State to bring a second prosecution when the

dismissal was entered as part of an agreement with the defendant and the defendant

has performed his part of the bargain. We hold that a second prosecution under

these circumstances is a due process violation, and we therefore reverse defendant’s

conviction.

¶3 BACKGROUND

¶4 A complete statement of facts may be found in the appellate court’s opinion.

See 2023 IL App (1st) 220322, ¶¶ 3-13. We set forth here only those facts necessary

for an understanding of the sole issue we decide.

¶5 On March 8, 2019, a grand jury returned a 16-count indictment charging

defendant, Jussie Smollett, with felony disorderly conduct. See 720 ILCS 5/26-

1(a)(4) (West 2018). The charges alleged that defendant falsely reported to Chicago

police officers that he had been the victim of a hate crime.

¶6 Eighteen days later, on March 26, 2019, an assistant state’s attorney explained

in open court before Judge Steven Watkins that the State was moving to nol-pros

the charges. The assistant state’s attorney explained the decision to the court as

follows:

“Judge, on today’s date, the State does have a motion in this case. After

reviewing the facts and circumstances of the case, including Mr. Smollett’s

volunteer service in the community and agreement to forfeit his bond to the City

of Chicago, the State’s motion in regards to the indictment is to [nol-pros]. We

believe this outcome is a just disposition and appropriate resolution to this case.

I do have an order directing the Clerk of the Circuit Court to release Bond

No. D 1375606, payable to the City of Chicago, to be sent directly to the City

of Chicago, Department of Law. And there’s an address and the person there

who takes care of that on behalf of the City.” 1

1

The amount of the bond was $10,000.

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The trial court granted the State’s motion to nol-pros and to release defendant’s

bond to the City of Chicago.

¶7 On April 5, 2019, a retired appellate court justice filed a pro se motion to

appoint a special prosecutor in the matter of People of the State of Illinois v. Jussie

Smollett. The motion raised questions about the resolution of the charges and the

manner in which the Cook County State’s Attorney, Kim Foxx, had recused herself.

¶8 After briefing and argument, Judge Michael Toomin entered an order granting

the appointment of a special prosecutor. In the order, Judge Toomin reviewed the

facts of the case and wrote that the disposition of the case by way of a nolle prosequi

had “shocked officialdom as well as the community.” Judge Toomin noted that both

then-Mayor Rahm Emanuel and then-President Donald Trump had issued

statements condemning the resolution of the case. Judge Toomin specifically found

that negotiations on the disposition had dated back to February 26, 2019, when First

Assistant State’s Attorney Joseph Magats wrote that the Cook County State’s

Attorney’s Office (CCSAO) could offer diversion and restitution but would indict

if something could not be worked out. On February 28, 2019, the chief of the

criminal division told detectives that they could no longer investigate the crime and

that she felt that the case would be settled with defendant paying $10,000 in

restitution and doing community service.

¶9 Judge Toomin then addressed at length the circumstances surrounding Foxx’s

recusal. Judge Toomin found that, once Foxx recused herself, appointment of a

special prosecutor was required. Instead, Foxx appointed her first assistant, Joseph

Magats, as the acting state’s attorney for this matter. Judge Toomin found that Foxx

had appointed Magats to an entity that did not exist because there is no legally

cognizable office of “Acting State’s Attorney.” Judge Toomin noted that in People

v. Ward, 326 Ill. App. 3d 897 (2002), the court had held that, if a case is not

prosecuted by an attorney properly acting as an assistant state’s attorney, the

prosecution is void and the cause should be remanded for prosecution by a proper

prosecutor. Judge Toomin also cited cases where proceedings had been voided

because of prosecutions by unlicensed attorneys. Judge Toomin concluded that

there was no duly elected state’s attorney of Cook County when defendant was

arrested, charged, indicted, or arraigned and that there was no state’s attorney in the

courtroom when the nolle prosequi was entered. Accordingly, Judge Toomin

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determined that appointment of a special prosecutor was mandated to conduct an

independent investigation of the actions of any person or office involved in this

case and to determine if reasonable grounds existed to further prosecute defendant.

¶ 10 Judge Toomin later appointed Dan Webb as special prosecutor. Following the

Office of the Special Prosecutor’s (OSP) investigation, a special grand jury indicted

defendant on six counts of felony disorderly conduct. See 720 ILCS 5/26-1(a)(4)

(West 2018). In an information release, which is part of the record, the OSP

explained that reasonable grounds existed to further prosecute defendant because

he had planned and participated in a staged hate crime attack and thereafter made

numerous false statements to Chicago police officers.

¶ 11 In the information release, the OSP also stated that it had determined that further

prosecution of defendant was in the interests of justice for several reasons. First,

the OSP relied on the extensive nature of the false police reports and the resources

expended by the Chicago Police Department to investigate them. Second, the OSP

contended that the CCSAO’s disposition of this case was not similar to how it had

disposed of similar cases. The CCSAO had stated in a press release that the case

was being resolved under the same criteria that would be available for any

defendant with similar circumstances. The OSP sought documentary evidence that

would back up this claim, and the CCSAO was unable to provide it. Third, the OSP

disagreed with how the CCSAO “resolved the Smollett case.” The OSP stated that

it had obtained evidence showing that the CCSAO believed that the case was strong

at the time it obtained the 16-count indictment against defendant. However, just

three weeks later the CCSAO decided to resolve the charges under the following

circumstances:

“1) complete dismissal of the 16-count felony indictment; 2) only

punishment for Mr. Smollett was to perform 15 hours of community service; 3)

requiring Mr. Smollett to forfeit his $10,000 bond as restitution to the City of

Chicago (a figure amounting to less than 10% of the $130,106.15 in police

overtime pay that the City alleges it paid solely due to Mr. Smollett’s false

statements to police); 4) not requiring that Mr. Smollett admit any guilt of his

wrongdoing (in fact, following the court proceedings on March 26, Mr. Smollett

publicly stated that he was completely innocent); and 5) not requiring that

Smollett participate in the CCSAO Deferred Prosecution Program (Branch 9),

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which he was eligible to participate in, and which would require a one-year

period of court oversight of Mr. Smollett.”

Fourth, the CCSAO decision-makers had been unable to identify any new evidence

they learned of between indictment and dismissal that changed their view of the

strength of the case against defendant.

¶ 12 Defendant moved to dismiss the new indictment on double jeopardy grounds.

He also moved to dismiss on the basis that the appointment of the special prosecutor

was invalid. The trial court denied both motions. Defendant later hired new counsel,

who moved to dismiss the indictment on the basis of the agreement he had reached

with the CCSAO. Defendant argued that he had entered into a nonprosecution

agreement with the CCSAO and that the agreement was executed and enforced. He

further argued that the OSP was bound by the agreement because the OSP and the

CCSAO are both agents of the State. Defendant performed his part of the agreement

when he forfeited his monetary bond and satisfied prosecutors as to his performance

of community service, and the State performed its end of the agreement when it

dismissed the case against him. Defendant cited People v. Starks, 106 Ill. 2d 441

(1985), for the proposition that agreements between the prosecution and the defense

will be enforced and, if the defendant performs his end of the bargain, then the State

must fulfill its part. Defendant further contended that public policy supports

enforcing agreements between the prosecution and the defense. Defendant asserted

that he had been duped by the State because it reindicted him after he had forfeited

a substantial bond to the City of Chicago in exchange for getting the charges

dismissed. The trial court heard oral argument on the motion. During oral argument,

counsel for defendant argued that what happened here was more egregious than in

other Illinois cases where the prosecution reneged on a deal. Here, the deal had

already been enforced, and the OSP was attempting to resurrect something that had

already been decided. The trial court denied the motion. The court stated that Judge

Toomin had found that “there really was no State’s Attorney running the show at

that time because of the confusion caused by the recusal announcement that was

publicly made.” Accordingly, the court stated that it was not going to challenge

Judge Toomin’s order or his reasoning and that it could not find a way to grant

pretrial relief.

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¶ 13 Following a jury trial, defendant was convicted of five counts of felony

disorderly conduct. The trial court sentenced him to 30 months’ probation, with the

first 150 days to be served in the Cook County Jail. The court also ordered him to

pay a $25,000 fine and $120,106 in restitution to the City of Chicago.

¶ 14 Defendant appealed, raising 13 issues. The appellate court described his appeal

as challenging “virtually every aspect of the second prosecution that resulted in his

convictions and sentence.” 2023 IL App (1st) 220322, ¶ 1. The appellate court

rejected all of his arguments and affirmed his convictions and sentence. Id. ¶ 148.

Relevant to his argument that the second prosecution was barred because he had

entered into a nonprosecution agreement with the CCSAO, the appellate court

majority held that the second prosecution was not barred because the first case was

disposed of with a nolle prosequi. Id. ¶¶ 28-30. The majority stated that well-

established Illinois law provides that a nolle prosequi is not a final disposition and

will not bar a second prosecution for the same offense. Id. ¶ 29. The majority

acknowledged the dissent’s argument that the State’s right to reindict after a

nolle prosequi can be bargained away when making a bilateral agreement. Id.

¶¶ 29-30. However, the court stated that “no Illinois court has ever applied

principles of contract law in interpreting the scope of a nolle prosequi disposition

in a criminal case.” Id. ¶ 32. The majority considered several cases where

agreements between defendants and prosecutors were enforced but determined that

they were all distinguishable. Id. ¶¶ 33-38. The court concluded that, here, the

record was “silent regarding any nonprosecution agreement between the CCSAO

and Smollett” and that the only disposition requested by the CCSAO was a

nolle prosequi, “which does not impart finality.” Id. ¶ 37.

¶ 15 Justice Lyle dissented. Justice Lyle would have found the second prosecution

barred by the agreement that defendant reached with prosecutors. Id. ¶¶ 151-75

(Lyle, J., dissenting). Justice Lyle agreed with the majority that a second

prosecution is not barred when the State enters a unilateral nolle. Id. ¶ 153.

However, Justice Lyle cited State v. Kallberg, 160 A.3d 1034, 1042 (Conn. 2017),

for the proposition that the State can bargain away that right when making a

bilateral agreement with a defendant. 2023 IL App (1st) 220322, ¶ 153. Justice Lyle

argued that the report that the OSP filed with the trial court detailing the findings

of its investigation showed that the CCSAO had entered into an agreement with

defendant. Id. ¶ 157. The report also explained that the statement the assistant

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state’s attorney read in court when the charges were dismissed was drafted in

conjunction with defendant’s attorney. Id. Justice Lyle also pointed out that the

assistant state’s attorney’s use of the words “disposition” and “resolution” when

entering the nolle showed that the CCSAO intended finality. Id. ¶ 173.

¶ 16 Justice Lyle argued that the majority’s contention that the nolle did not bar

further prosecution was “unsupported legally and factually.” Id. ¶ 158. Justice Lyle

cited Illinois case law establishing that contract principles apply in the precharging

phase. Id. ¶ 159. Justice Lyle discussed Kallberg at length. She found persuasive

the Connecticut Supreme Court’s discussion of nolle prosequi orders that are

entered as a unilateral act by a prosecutor versus those that are entered as part of a

bilateral agreement with a defendant. Id. ¶¶ 160-63. In the latter situation,

reprosecution is barred after a nolle if the defendant has performed his obligation

under the agreement. Id. ¶ 161 (citing Kallberg, 160 A.3d at 1042). Justice Lyle

would have applied those principles here. Id. ¶ 163. Because defendant gave up

something of value in exchange for the resolution of the original case, he could not

be reprosecuted. Id. Justice Lyle then wrote:

“While that result may have appeared unjust to some, another trial court judge,

unrelated to the proceedings, cannot unilaterally renege on the deal and grant

the authority to a special prosecutor to violate a deal that bound the State. See

State v. Platt, 783 P.2d 1206, 1206 (Ariz. Ct. App. 1989) (stating a deferred

prosecution agreement ‘may not, however, be rescinded simply because the

state, on reflection, wishes it had not entered into the agreement at all’). That

does not just violate contract law but would be manifestly unjust and would

make every agreement the State enters into with a defendant tenuous, leaving

defendants wondering whether public outcry would destroy the carefully

crafted negotiation with the State. See People v. Starks, 106 Ill. 2d 441, 449

(1985). Public policy considerations and reverence for our justice system

disfavor reneging on such agreements and should never be outweighed by a

cacophony of criticism as to the terms of the agreement.” Id.

¶ 17 We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Dec.

7, 2023).

¶ 18 ANALYSIS

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¶ 19 Defendant makes the following five arguments on appeal: (1) he entered into a

nonprosecution agreement with the State that should be enforced, (2) double

jeopardy considerations precluded the second prosecution because he had already

been punished for these same offenses, (3) the trial court erred in denying his Rule

412 motion to compel the OSP to disclose to the court for in-camera review its

notes from interviews with two key witnesses (see Ill. S. Ct. R. 412 (eff. Mar. 1,

2001)), (4) his sentence was excessive and influenced by improper aggravating

factors, and (5) the restitution order was in error because of problems of proof and

because the City of Chicago and the Chicago Police Department cannot be

considered “victims” under the applicable statute. We agree with defendant’s first

contention and therefore do not address the others.

¶ 20 Defendant’s argument largely tracks the reasoning of Justice Lyle’s dissent.

Defendant argues that he entered into a nonprosecution agreement with the State,

that he fully performed his part of the agreement, and that therefore any further

prosecution of him was barred. He cites authority from Illinois and other

jurisdictions in which agreements between defendants and the prosecution have

been enforced in a variety of settings. Defendant contends that public policy

considerations support enforcing such agreements. He argues that it is irrelevant

that the first case was disposed of by way of a nolle prosequi because the nolle was

entered by the State as part of a bilateral agreement. He cites cases in which courts

have applied contract principles to enforce nonprosecution agreements within the

context of a nolle prosequi. According to defendant, if the parties have bargained

for a dismissal of the charges and the defendant has performed his part of the

bargain, the manner in which the State disposes of the charges is irrelevant.

Defendant further contends that, if there were any structural or procedural flaws in

the nonprosecution agreement, Illinois law requires that the agreement be enforced

if defendant relied on the agreement and his reliance had constitutional

implications. Finally, he argues that, if this court has any doubts as to the terms of

the agreement entered into between the parties, it should remand the matter for an

evidentiary hearing.

¶ 21 The State counters that the record does not show that the nolle prosequi was

entered into as part of any agreement. Alternatively, the State argues that, to the

extent there was an agreement, it was only for a nolle prosequi rather than a

dismissal with prejudice. The State cites Illinois case law establishing that a

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nolle prosequi is not a final disposition and that it does not bar further prosecution.

The State acknowledges cases that have enforced agreements between the

prosecution and the defense. However, the State contends that those cases all

involved the defendant waiving a significant constitutional right. The State argues

that a remand for an evidentiary hearing would not be appropriate because

defendant failed to develop an evidentiary record establishing a nonprosecution

agreement and never requested an evidentiary hearing. Finally, the State briefly

argues that defendant may not challenge his reprosecution on the basis of a

nonprosecution agreement in the first case, as the circuit court found that those

proceedings were void.

¶ 22 A reviewing court considers a trial court’s ultimate ruling on a motion to

dismiss charges under an abuse-of-discretion standard, but where the issues present

purely legal questions, the standard of review is de novo. See People v. Stapinksi,

2015 IL 118278, ¶ 35. Whether a defendant was denied due process and whether

that denial was sufficiently prejudicial to require the dismissal of the charges are

questions of law, which are reviewed de novo. Id. Given that the trial court

summarily denied defendant’s motion to dismiss without resolving any factual

questions or even addressing the merits of defendant’s arguments, we believe that

de novo review is appropriate.

¶ 23 In Santobello v. New York, 404 U.S. 257, 258 (1971), the defendant agreed to

plead guilty to a lesser-included offense of the crime charged if the prosecution

would make no recommendation as to the sentence. After the defendant pleaded

guilty to the lesser charge, the prosecution recommended the maximum sentence,

and the trial court imposed it. Id. at 259-60. The United States Supreme Court

vacated and remanded, holding that, “when a plea rests in any significant degree on

a promise or agreement of the prosecutor, so that it can be said to be part of the

inducement or consideration, such promise must be fulfilled.” Id. at 262. Courts

have also consistently enforced agreements between defendants and the

prosecution in a variety of other contexts. As Professor LaFave has noted, courts

have

“enforced prosecution agreements that the charges would be dropped if the

defendant passed a polygraph examination, obtained a psychiatric examination

producing specified results, ceased his criminal conduct, or aided a criminal

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investigation in some way or even if some additional test, to be conducted after

a trial postponement agreed to by the defendant, did not implicate the

defendant.” 4 Wayne R. LaFave et al., Criminal Procedure § 13.5(b) (4th ed.

2023 Update).

In reaching these results, some courts have employed contract principles, while

others have argued that it would be a breach of the public faith to not hold the

government to its word. Id.; see, e.g., United States v. Castaneda, 162 F.3d 832,

835-36 (5th Cir. 1998) (explaining that nonprosecution agreements are interpreted

in accordance with contractual principles and, if a defendant meets his end of the

bargain, the government is bound to perform its end); State v. Davis, 188 So. 2d 24,

27 (Fla. Dist. Ct. App. 1966) (promise to dismiss charges if the defendant passed a

polygraph examination was “a pledge of public faith—a promise made by state

officials—and one that should not be lightly disregarded”).

¶ 24 In Starks, 106 Ill. 2d at 444, this court addressed a situation where the

prosecution allegedly agreed to dismiss the charge against the defendant if the

defendant would submit to and pass a polygraph examination. In his motion for a

new trial, the defendant alleged that he passed the polygraph but the State did not

dismiss the charge. Id. This court found the record insufficient to determine whether

there was such an agreement, so it remanded the cause to the circuit court for an

evidentiary hearing to resolve that question. Id. at 451-53. If the circuit court

determined that the parties had made such an agreement, this court directed that it

implement the agreement by appropriate orders. Id. at 453.

¶ 25 The Starks court explained why such an agreement was enforceable:

“The State’s Attorney is an elected representative of the People; he has been

given the responsibility of evaluating evidence and determining what offense,

if any, can and should properly be charged. Prosecutors have traditionally been

afforded a broad range of discretion within which to perform their public duties.

(People v. McCollouch (1974), 57 Ill. 2d 440, 444.) The prosecution must honor

the terms of agreements it makes with defendants. To dispute the validity of this

precept would surely result in the total nullification of the bargaining system

between the prosecution and the defense. Therefore, this court believes that if

the prosecution did make an agreement with the defendant, it must abide by its

agreement in this case.” (Emphasis added and omitted.) Id. at 448-49.

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This court noted that the Michigan Supreme Court and the Florida Appellate Court

had enforced similar agreements. Id. at 449-51 (discussing People v. Reagan, 235

N.W.2d 581 (Mich. 1975), Butler v. State, 228 So. 2d 421 (Fla. Dist. Ct. App.

1969), and Davis, 188 So. 2d 24). This court rejected the State’s argument that,

assuming that such an agreement existed, then it was simply a “ ‘gift-type’ bargain”

lacking any consideration. Id. at 451. This court explained that the consideration

was the defendant surrendering his fifth amendment privilege against self-

incrimination (U.S. Const., amend. V) by submitting to a polygraph exam. Starks,

106 Ill. 2d at 415.

¶ 26 In the plea agreement context, this court has declined to require specific

performance of agreements if the defendant has not yet pleaded guilty. This court

has held that, in this context, a defendant’s due process rights may be protected by

pleading not guilty and going to trial. See Stapinski, 2015 IL 118278, ¶ 46. Thus,

in People v. Boyt, 109 Ill. 2d 403, 415 (1985), this court declined to require specific

performance of a plea agreement when the prosecution withdrew an offer before

the defendant pleaded guilty. This court explained that the State’s repudiation of

the agreement was without constitutional significance because the defendant did

not plead guilty in reliance on the agreement. Id. This court distinguished Starks on

the basis that the defendant in Starks had surrendered his privilege against self-

incrimination by submitting to the polygraph examination, whereas Boyt had

“surrendered nothing.” Id. at 416; see People v. Navarroli, 121 Ill. 2d 516 (1988)

(relying on Boyt and declining to require specific performance of plea agreement

when the defendant had not pleaded guilty in reliance on the agreement).

¶ 27 In People v. Smith, 233 Ill. App. 3d 342, 344 (1992), the appellate court

addressed a situation where charges against the defendant had been dismissed by

the prosecutor in exchange for the defendant providing assistance to undercover

police in making purchases of cocaine in Ogle County. When the state filed new

indictments against the defendant, the trial court dismissed the indictments, finding

that reinstating the charges violated the defendant’s due process rights. Id. The

appellate court rejected the State’s request for an evidentiary hearing pursuant to

Starks to determine if there was an agreement and what its terms were. Id. at 346.

The court held that remand was unnecessary because, unlike in Starks, the

agreement was set forth in a court transcript. Id.

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¶ 28 After holding that the new indictments violated both the defendant’s due

process rights and the prohibition against double jeopardy and were barred by

res judicata, the appellate court held that the trial court’s judgment could also be

affirmed on the ground that the defendant had fulfilled her part of the agreement,

which the court could enforce as an executed agreement. Id. at 348. The State,

relying on Boyt and Navarroli, argued that the State was not bound to honor the

agreement. Id. at 349. The appellate court disagreed, holding that Boyt and

Navarroli involved plea agreements, while the case before it involved a

cooperation-immunity agreement. Id. The court distinguished the two situations as

follows:

“[T]he due process implications are different. In the plea agreement scenario, if

the defendant has not yet pled guilty, he may still proceed to trial. (Mabry v.

Johnson (1984), 467 U.S. 504, 507-08, 81 L. Ed. 2d 437, 442, 104 S. Ct. 2543,

2546.) Here, however, it is the violation of ‘the right not to be haled into court

at all *** [which] operated to deny [defendant] due process of law.’ Blackledge

v. Perry (1974), 417 U.S. 21, 30-31, 40 L. Ed. 2d 628, 636, 94 S. Ct. 2098,

2104.” Id. at 350.

The court also found it significant that the case before it involved an agreement that

had been approved of by the trial court. Id. The trial court had dismissed the

indictments on the State’s motion. Id. The court found that Starks, rather than Boyt

and Navarroli, was the appropriate precedent. Id. The defendant in Smith, just like

the defendant in Starks, had fully performed her part of the bargain and was entitled

to specific performance of the agreement. Id. at 350-51. The new charges filed

against the defendant violated her due process rights. The court also noted that

another appellate court decision, People v. Schmitt, 173 Ill. App. 3d 66 (1988), had

held that to allow the State to violate its part of a cooperation-immunity agreement

would “ ‘constitute judicial approval of the government violating its agreement, a

reprehensible aberration.’ ” Smith, 233 Ill. App. 3d at 350 (quoting Schmitt, 173 Ill.

App. 3d at 101).

¶ 29 In Stapinksi, 2015 IL 118278, this court agreed with the Smith court’s

assessment of how plea agreements are different from other types of agreements

entered into between the prosecution and the defendant. In that case, the trial court

dismissed charges against the defendant after finding that the indictment violated

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his due process rights as well as a cooperation agreement he had entered into with

police. Id. ¶ 25. The court concluded that the defendant had entered into a valid oral

cooperation agreement that, if the defendant cooperated in the arrests of certain

individuals, he would not be charged. Id. The court also found that the defendant’s

due process rights were violated because he had fulfilled his part of the bargain and

incriminated himself in the process. Id. A divided appellate court reversed and

remanded. Id. ¶ 27. This court reversed the appellate court and affirmed the circuit

court. Id. ¶ 56.

¶ 30 On appeal to this court, the State acknowledged that, in Starks, this court had

held that due process requires the State to honor agreements it makes with a

defendant when a defendant fully performs his end of the bargain. Id. ¶ 43.

However, the State contended that the officers did not have the authority to enter

into the agreement without the approval of the state’s attorney. Id. The State

contended that (1) the State is not required to specifically perform a police officer’s

unauthorized nonprosecution agreement and (2) dismissal of the indictment was not

an appropriate remedy because the defendant’s statements could simply be

suppressed. Id. ¶¶ 43-44. This court rejected both arguments.

¶ 31 This court explained how cooperation agreements differed from plea

agreements: in a plea agreement, the detrimental reliance is the waiver of the right

to trial, whereas with a nonprosecution agreement, the defendant’s cooperation is

sufficient consideration for the government’s immunity promise. Id. ¶ 46.

Moreover, the due process implications in each scenario are different. In the plea

agreement scenario, if the defendant has not yet pleaded guilty, he still has the

option of going to trial. With a cooperation agreement, the violation of the right not

to be haled into court is what denies the defendant due process. Id. This court further

explained that cooperation agreements are analyzed under contract principles and

that the principle for enforcing them is the due process clause of the fourteenth

amendment (U.S. Const., amend. XIV). Stapinksi, 2015 IL 118278, ¶¶ 47-48. This

court stated:

“ ‘Generally, fundamental fairness requires that promises made during plea-

bargaining and analogous contexts be respected.’ (Internal quotation marks

omitted.) [State v. Wacker, 688 N.W.2d 357, 362 (Neb. 2004)]. ‘[W]here the

government has entered into an agreement with a prospective defendant and the

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defendant has acted to his detriment or prejudice in reliance upon the

agreement, as a matter of fair conduct, the government ought to be required to

honor such an agreement.’ (Internal quotation marks omitted.) Id.” Id. ¶ 48.

This court noted that the essence of due process is fundamental fairness and cited

People v. McCauley, 163 Ill. 2d 414 (1994), for the proposition that “due process

is implicated ‘whenever the State engages in conduct towards its citizens deemed

oppressive, arbitrary or unreasonable.’ ” Stapinski, 2015 IL 118278, ¶ 51 (quoting

McCauley, 163 Ill. 2d at 425). This court held that dismissal of the indictment was

appropriate because the defendant’s due process rights were violated when the State

breached the agreement. Id. ¶ 52.

¶ 32 The Stapinski court also rejected the State’s argument that the agreement was

unenforceable because the police did not have the authority to bind the state’s

attorney. Id. ¶¶ 53-55. The court noted that the trial court had found that the

defendant fulfilled his obligations under the agreement and that his due process

rights were violated when the State later charged him. Id. ¶ 55. This court held that,

under these circumstances, it did not matter whether the agreement was valid in the

sense that it was approved by the state’s attorney. Id. The court explained that “[a]n

unauthorized promise may be enforced on due process grounds if a defendant’s

reliance on the promise has constitutional consequences.” Id. As the defendant had

suffered a prejudicial violation of his due process rights, dismissal of the indictment

was appropriate even if the police did not have the authority to bind the state’s

attorney. Id.

¶ 33 If defendant is correct that the initial charges were dismissed as part of an

agreement with the State in which he fully performed his end of the agreement, the

above authorities would support enforcing the agreement. Therefore, we proceed

to consider the following three questions: First, was the nolle prosequi entered

because of an agreement between the parties? Second, if so, what were the terms of

the agreement and the intentions of the parties? And third, what was the legal effect

of the agreement?

¶ 34 I. The Nolle Prosequi Was Entered as

Part of an Agreement With Defendant

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¶ 35 The State briefly contends that there is no evidence that the CCSAO moved for

a nolle prosequi as part of any agreement. The State notes that, when the assistant

state’s attorney read the statement about the nolle prosequi, she referred to

defendant’s volunteer service in the community. The State also argues that

defendant’s forfeiture of his bail bond was voluntary.

¶ 36 That the nolle prosequi was entered as part of an agreement with defendant is

clear from the record. Again, when the nolle prosequi was entered, the assistant

state’s attorney stated:

“After reviewing the facts and circumstances of the case, including Mr.

Smollett’s volunteer service in the community and agreement to forfeit his bond

to the City of Chicago, the State’s motion in regards to the indictment is to [nol-

pros]. We believe this outcome is a just disposition and appropriate resolution

to this case.” (Emphasis added.)

The State contends that defendant admitted that the forfeiture of his bond was

voluntary. However, the portion of the record that the State cites in support of this

proposition is a sentence from defendant’s motion to dismiss the indictment on

double jeopardy grounds, which begins: “[u]nder the circumstances where the bond

was voluntarily forfeited as a condition of the dismissal of charges.” (Emphasis

added.) This is fully consistent with defendant’s position that the charges were

dismissed as part of an agreement. Moreover, as defendant points out, the only other

interpretation of the prosecutor’s words is that defendant charitably agreed to give

up his $10,000 bail bond at the exact moment that the prosecutor coincidentally

dismissed the case. This is obviously not what happened.

¶ 37 Although we think it is clear from the assistant state’s attorney’s statement

alone that the nolle prosequi was entered as part of an agreement with defendant,

we note that the record contains even more support for this conclusion. In Judge

Toomin’s order appointing a special prosecutor, he specifically addressed the

negotiations the parties entered into over the resolution, and he wrote that “there

was no admission of guilt or plea when the agreement was consummated.”

Moreover, the OSP’s own investigation revealed an agreement between the parties.

The OSP’s summary report of the conclusions and findings of its investigation,

which the trial court made public at the OSP’s request, is in the record. In the report,

the OSP states that it interviewed defendant’s “lawyer who negotiated the

- 15 -

resolution.” Moreover, the OSP found that there was a conflict over “who

negotiated the terms of the resolution with Mr. Smollett’s lawyers.” Two different

assistant state’s attorneys each stated that the other one negotiated the terms of the

resolution with defense counsel, and defense counsel offered her version of which

assistant state’s attorney she negotiated the resolution with. The report also notes a

discrepancy between the two assistant state’s attorneys over when the CCSAO

began discussing resolution terms with defense counsel. The report also states that

the first assistant state’s attorney offered terms to defendant, which he ultimately

accepted. Additionally, the report quotes a press release that the CCSAO issued

when it dismissed the charges. In this press release, the CCSAO states that it

dropped the charges in return for defendant’s agreement to do community service

and forfeit his bond to the City of Chicago. The press release further states that,

“Without the completion of these terms, the charges would not have been dropped.”

Finally, the report notes that the statement that the assistant state’s attorney read in

court on March 26, 2019, was drafted in conjunction with defendant’s attorney. As

the OSP’s own report shows, there simply is no credible argument that the dismissal

was not entered as part of an agreement with defendant.

¶ 38 II. Terms of the Agreement

¶ 39 The basic terms of the agreement are clear from the statement the assistant

state’s attorney read on March 26, 2019: community service and bond forfeiture on

defendant’s part and dismissal of the charges on the State’s part. The complete

terms of the agreement are set out in more detail in the OSP’s summary report of

its findings and are virtually identical to those set forth in the OSP’s information

release. According to the OSP’s report, the CCSAO “made the decision to resolve

the charges” as follows:

“(1) complete dismissal of the 16-count felony indictment against Mr. Smollett;

(2) no requirement that Mr. Smollett plead guilty to any criminal offense under

Illinois law; (3) no requirement that Mr. Smollett admit any guilt of his

wrongdoing (in fact, following the court proceedings on March 26, 2019, Mr.

Smollett publicly stated he was completely innocent); (4) the only punishment

for Mr. Smollett was to perform 15 hours of community service that had no

relationship to the charged conduct; (5) only requiring Mr. Smollett to forfeit

- 16 -

his $10,000 bond as restitution to the City of Chicago (a figure amounting to

less than 10% of the $130,106.15 in police overtime pay that the City alleges it

paid solely due to Mr. Smollett’s false statements to police); and (6) no

requirement that Mr. Smollett participate in the CCSAO’s Deferred Prosecution

Program (Branch 9), which would have required a one-year period of court

oversight over Mr. Smollett.”

The OSP’s report specifically refers to the above as the “terms of the dismissal.”

¶ 40 It is equally clear that the parties intended finality. The State disagrees with this

conclusion, relying on the boilerplate principle that a nolle prosequi is not a final

disposition of a case and does not bar another prosecution for the same offense. See

People v. Milka, 211 Ill. 2d 150, 172 (2004). Thus, according to the State, the

dismissal of the charges via nolle prosequi shows that the parties did not intend

finality. The State argues that the defendant’s attorney remaining silent when the

prosecution announced a dismissal by nolle prosequi shows that the parties did not

intend a dismissal with prejudice. In response to a question at oral argument, the

State conceded that its argument is that the parties did not enter into a

nonprosecution agreement but rather a “not prosecute you today agreement.” In

other words, the CCSAO refiling charges the day after the defendant forfeited his

$10,000 bond to the City of Chicago would have been perfectly in keeping with

what the parties intended when they entered into the agreement. We disagree.

¶ 41 We agree with Justice Lyle that the assistant state’s attorney’s statement on

March 26, 2019, clearly showed that the parties intended finality. Again, the

assistant state’s attorney stated that this outcome was a “just disposition and

appropriate resolution to this case.” This is not the statement of someone who

intends to refile the charges. As cogently explained by Justice Lyle:

“While the State could have exercised greater semantical precision on the

record by stating that the case was terminated with no intention of refiling, from

the record it is apparent that was its intent. Any argument that suggests that the

State had no intention of dismissing this case, as a conclusion and disposition

of the prosecution, fails. The intent of the prosecutor to exercise the authority

of the State in crafting and tendering its agreed disposition to the trial court was

evident. The prosecutor stated she believed ‘this outcome [was] a just

disposition and appropriate resolution to this case.’ Merriam-Webster defines

- 17 -

the term ‘disposition’ as ‘the act or the power of disposing or the state of being

disposed: such as’ ‘final arrangement’ or ‘settlement.’ See Merriam-Webster

Online Dictionary, https://www.merriam-webster.com/dictionary/disposition

(last visited Nov. 16, 2023) [https://perma.cc/KKW9-KPJ2]. Those words

denote a finality that would not exist if the State merely sought to refile the

charges. In reality, there is no indication in the record or in any brief that the

Cook County State’s Attorney’s Office had any intention to reinstate the

charges. However, the State could not have predicted the public outcry

precipitating an unprecedented appointment of a special prosecutor who would

violate its lawful agreement with impunity. Ordinarily, when the State disposes

of a case, the case file stays within its exclusive control and possession.” 2023

IL App (1st) 220322, ¶ 173.

¶ 42 The intent of finality is also evident in the terms of the agreement as set forth

by the OSP. In its report, the OSP states that the only “punishment” defendant

would receive would be 15 hours of community service and forfeiture of his bond

as restitution to the City of Chicago. Using words such as “punishment” and

“restitution” connotes a case that is at an end, not one that the State intends to

continue to pursue. Every time the OSP had a chance to describe the terms of the

agreement, it described it as “complete dismissal” in exchange for punishment and

restitution. The OSP also noted that the parties agreed that defendant would not

have to plead guilty and would not have to participate in the deferred prosecution

program. Again, these statements connote a case that is resolved rather than one

that is ongoing.

¶ 43 That the parties intended finality is also supported by page after page of the

OSP’s summary report. There is no indication anywhere in the report that the

CCSAO intended to further prosecute defendant, and there is every indication that

the CCSAO considered the case resolved. For instance, the OSP states that, after

the case was dismissed by the CCSAO, there was media speculation about whether

something improper had gone on behind the scenes to allow defendant to “achieve

the particular resolution he received.” When setting forth the terms of the parties’

agreement, the OSP stated that the CCSAO “made the decision to resolve the

charges” under those terms. The OSP discusses an interview with State’s Attorney

Foxx in which she said that she was surprised by and disagreed with how the case

was resolved. She believed that the community service should have been related to

- 18 -

the offense and that defendant should have had to pay more than $10,000 in

restitution. She further stated that, if defendant was not going to be required to plead

guilty, he should have at least been required to “admit facts of wrongdoing.” She

also told the OSP that she believed the case was resolved this way because “they

wanted this guy [Mr. Smollett] out of town” because of the “flurry of activity” at

the courthouse and the throngs of people who were coming to court. The OSP also

stated that it interviewed lawyers who currently or previously worked in the

CCSAO’s criminal division who were surprised and shocked by at least some facet

of the dismissal terms. The OSP also explained the various ways that the resolution

defendant received did not track the requirements of the deferred prosecution

program. Additionally, the OSP set forth the following quote from a press statement

issued by the CCSAO when it dismissed the charges:

“In the last two years, the Cook County State’s Attorney’s Office has referred

more than 5,700 cases for alternative prosecution. This is not a new or unusual

practice. An alternative disposition does not mean that there were any problems

or infirmities with the case or the evidence. We stand behind the Chicago Police

Department’s investigation and our decision to approve charges in this case.

We did not exonerate Mr. Smollet[t]. The charges were dropped in return for

Mr. Smollet[t]’s agreement to do community service and forfeit his $10,000

bond to the City of Chicago. Without the completion of these terms, the charges

would not have been dropped. This outcome was met under the same criteria

that would occur for and is available to any defendant with similar

circumstances.”

¶ 44 All of the above statements indicate a case that has been resolved, not one in

which further prosecution is contemplated. Indeed, nothing that happened after the

initial case was dismissed makes sense if continued prosecution was contemplated.

If, for instance, the CCSAO had nol-prossed the case because of evidentiary

problems that would require further investigation before a prosecution could

proceed, there would have been no public outcry. 2 A retired judge would not have

sought appointment of a special prosecutor. If further prosecution by CCSAO were

contemplated, Judge Toomin would not have argued that the disposition “shocked

2

The OSP concluded in its report that “there is no indication that the CCSAO or CPD identified

any new evidence after Mr. Smollett was indicted and before the CCSAO dismissed the [i]nitial

Smollett Case that changed the CCSAO’s assessment of the case.” (Emphasis omitted.)

- 19 -

officialdom as well as the community.” The OSP would not have stated in a press

release that it disagreed with how the CCSAO “resolved the Smollett case” and

contended that the disposition was dissimilar to how the CCSAO had disposed of

similar cases. All of these things happened because the previous case had been

resolved.

¶ 45 Finally, it defies credulity to believe that defendant would agree to forfeit

$10,000 with the understanding that CCSAO could simply reindict him the

following day. As Justice Lyle noted in her dissent:

“While a defendant might appreciate the gift of a nolle when not part of

underlying negotiations, why would a defendant bargain for uncertainty? When

negotiating a disposition, a defendant is bargaining for the certainty that a plea,

a cooperation agreement, or deferred prosecution agreement provides rather

than rolling the dice with a trial.” 2023 IL App (1st) 220322, ¶ 169.

¶ 46 III. Legal Effect of the Agreement

¶ 47 A. The State Is Bound by the Agreement

¶ 48 Because the charges were dismissed in exchange for defendant’s community

service and forfeiture of his bail bond and because defendant fully performed his

end of the agreement, the State is bound by the agreement. The State contends that

the most relevant authority is Boyt. We disagree. Boyt involved a plea agreement

that the State backed out of before defendant entered a plea in reliance on the

agreement. As Stapinski explained, the due process considerations are different in

the plea agreement setting. Stapinski, 2015 IL 118278, ¶ 46. Moreover, the Boyt

court distinguished Starks on the basis that the defendant in Boyt had “surrendered

nothing” in reliance on the agreement. Boyt, 109 Ill. 2d at 416. Here, defendant

surrendered $10,000 to the City of Chicago.

¶ 49 Because this case involves an agreement to dismiss charges in exchange for

defendant doing something and defendant did what the agreement required, Starks

and Stapinksi provide the relevant precedent. Again, Starks involved an alleged

agreement between the prosecution and the defendant whereby the State would

dismiss the charges if the defendant took and passed a polygraph examination. This

- 20 -

court stated that, “[i]f there was an agreement as alleged, and if Starks fulfilled his

part of it, then the State must fulfill its part.” Starks, 106 Ill. 2d at 452. Stapinski

involved a situation where the State agreed not to bring charges against the

defendant if he assisted them in a drug investigation. This court held that the

principle for enforcing agreements such as this is the due process clause of the

fourteenth amendment and that, when a defendant acted to his detriment in reliance

on an agreement with the State, the State is required to honor the agreement as a

matter of fair conduct. Stapinski, 2015 IL 118278, ¶ 48. Here, we have a fully

executed agreement between defendant and the State. Both parties performed their

part of the agreement, and the trial court enforced it. To allow the State to renege

on the deal and bring new charges would be fundamentally unfair and offend basic

notions of due process.

¶ 50 The State contends that the above cases are distinguishable in that the

defendants in those cases surrendered constitutional rights in exchange for the

dismissal of charges. By doing so, the defendants were hampering their ability to

defend themselves against future charges. Here, by contrast, the defendant’s

reliance was forfeiting a $10,000 bond rather than a constitutional right. The State

contends that the bond forfeiture was voluntary and that the voluntary forfeiture of

a bond is fundamentally unlike a waiver of constitutional rights. We disagree with

the State for several reasons.

¶ 51 First, as we have already explained, the State’s assertion that the bond forfeiture

was voluntary was based on a sentence from defendant’s motion to dismiss where

defendant stated that the bond was voluntarily forfeited as a condition of dismissal

of the charges. In other words, the bond was forfeited in reliance on an agreement

with the State. Indeed, in the OSP’s own report, the bond forfeiture is described as

a requirement. Second, this court’s explanation in Starks for why the State was

required to honor the agreement was not based on the defendant surrendering a

constitutional right. The rationale was as follows:

“The prosecution must honor the terms of agreements it makes with defendants.

To dispute the validity of this precept would surely result in the total

nullification of the bargaining system between the prosecution and the defense.

Therefore, this court believes that if the prosecution did make an agreement

- 21 -

with the defendant, it must abide by its agreement in this case.” Starks, 106 Ill.

2d at 449.

In the passage the State relies on, where this court discussed the defendant

surrendering his fifth amendment privilege against self-incrimination, this court

was addressing the State’s argument that the agreement was merely a gift-type

bargain lacking in consideration. Id. at 451. This court rejected that argument on

the basis that the defendant’s waiver of the privilege against self-incrimination was

the consideration. Id. This court was simply addressing what the consideration was

in the case before it. Nothing in Starks even remotely suggests that the forfeiture of

a $10,000 bond could not be adequate consideration to enforce an agreement with

the State.

¶ 52 Similarly, in Stapinski, when explaining why the State was required to honor

its cooperation agreement, this court relied entirely on contract principles, due

process, and fundamental fairness. See Stapinski, 2015 IL 118278, ¶¶ 47-52. The

court was quite clear that

“ ‘[w]here the government has entered into an agreement with a prospective

defendant and the defendant has acted to his detriment or prejudice in reliance

upon the agreement, as a matter of fair conduct, the government ought to be

required to honor such an agreement.’ ” Id. ¶ 48 (quoting State v. Wacker, 688

N.W.2d 357, 362 (Neb. 2004)).

Nowhere in the discussion of why the defendant’s due process rights were violated

by the State’s breach of the agreement did the court say anything to suggest that the

only enforceable agreements with the State are those in which the defendant waives

a constitutional right as consideration.

¶ 53 Later, in addressing a different argument, the Stapinski court referred to a

defendant’s reliance having constitutional consequences. There, the court was

responding to the State’s argument that the agreement was unenforceable because

the police did not have the authority to bind the state’s attorney to the agreement.

This court rejected that argument, explaining that an “unauthorized promise may

be enforced on due process grounds if a defendant’s reliance on the promise has

constitutional consequences.” Id. ¶ 55. This court explained that the defendant had

relied on the nonprosecution agreement he made with police and incriminated

- 22 -

himself in the process. Thus, he had suffered a prejudicial violation of his due

process rights. Id. In that passage, the court was specifically addressing the

circumstances under which an unauthorized promise is enforceable. Regardless, the

State reneging on an agreement after the defendant had forfeited a $10,000 bond

obviously has constitutional consequences. Stapinski explained that due process is

a “fundamental premise of our system of justice, designed to protect an individual’s

personal and property rights from arbitrary and capricious governmental action.”

(Emphasis added.) Id. ¶ 50. This court further stated that due process is implicated

whenever “ ‘the State engages in conduct towards its citizens deemed oppressive,

arbitrary or unreasonable.’ ” Id. ¶ 51 (quoting McCauley, 163 Ill. 2d at 425).

Moreover, because “the essence of due process is ‘fundamental fairness,’ due

process essentially requires ‘fairness, integrity, and honor in the operation of the

criminal justice system, and in its treatment of the citizen’s cardinal constitutional

protections.’ ” Id. (quoting McCauley, 163 Ill. 2d at 441). Clearly, the State

reneging on a fully executed agreement after defendant had forfeited a $10,000

bond in reliance on the agreement would be arbitrary, unreasonable, fundamentally

unfair, and a violation of the defendant’s due process rights. See, e.g.,

Commonwealth v. Cosby, 252 A.3d 1092, 1135 (Pa. 2021) (“at a minimum, when

a defendant relies to his or detriment upon the acts of a prosecutor, his or her due

process rights are implicated”); Commonwealth v. Sluss, 419 S.E.2d 263, 265 (Va.

Ct. App. 1992) (“to allow the government to receive the benefit of its bargain

without providing the reciprocal benefit contracted for by the defendant would do

more than violate the private contractual rights of the parties—it would offend all

notions of fairness in the related criminal proceedings, which are protected by

constitutional due process”).

¶ 54 B. Under These Circumstances, Dismissal of the

Original Charges by Nolle Prosequi Did Not

Allow New Charges to Be Brought

¶ 55 The next question is whether, despite what the parties may have intended, the

dismissal of the charges by way of a nolle prosequi allowed the State to bring new

charges against defendant. The State argues that further prosecution was not barred

because the first case was dismissed by way of a nolle prosequi. The State cites

People v. Daniels, 187 Ill. 2d 301, 312 (1999), for the proposition that a nolle

- 23 -

prosequi “is not a final disposition of the case, and will not bar another prosecution

for the same offense” (internal quotation marks omitted) and People v. Hugues,

2012 IL 112817, ¶ 23, for the proposition that a nolle prosequi “leaves the matter

in the same condition as before the prosecution commenced.” The State further

argues, citing People v. Gill, 379 Ill. App. 3d 1000 (2008), and People v. Ryan, 259

Ill. App. 3d 611 (1994), that the court may not infer that a dismissal of charges was

with prejudice. Rather, the record must affirmatively show that this was the

prosecution’s intent.

¶ 56 The rule that the State relies upon—that a defendant may be reprosecuted after

a nolle prosequi—has never been absolute. Rather, as this court has clearly stated:

“[W]e have previously held that if a nolle prosequi is entered before jeopardy

attaches, the State may reprosecute the defendant subject to other relevant

statutory or constitutional defenses (see, e.g., Ferguson v. City of Chicago, 213

Ill. 2d 94, 102 (2004) (nolle prosequi ‘does not toll the statute of limitations’))

and ‘ “absent a showing of harassment, bad faith, or fundamental unfairness.” ’

Norris, 214 Ill. 2d at 104 (quoting People v. DeBlieck, 181 Ill. App. 3d 600,

606, (1989)).” (Emphasis added.) Hughes, 2012 IL 112817, ¶ 23.

As we have already explained above, Illinois case law establishes that it is

fundamentally unfair to allow the prosecution to renege on a deal with a defendant

when the defendant has relied on the agreement to his detriment.

¶ 57 Moreover, none of the cases the State cites involve a nolle prosequi that was

entered as part of an agreement with a defendant. In Kallberg, the Supreme Court

of Connecticut explained the difference between a unilateral nolle and one that is

entered as part of a bilateral agreement with the defendant. Kallberg noted that,

when a nolle is entered as a unilateral act by a prosecutor, the defendant may be

tried again. Kallberg, 160 A.3d at 1041-42. However, the situation is different when

the nolle is entered as part of an agreement with the defendant:

“A nolle may, however, be bargained for as part of a plea agreement; see

State v. Daly, 111 Conn.App. 397, 400 n.2, 960 A.2d 1040 (2008), cert. denied,

292 Conn. 909, 973 A.2d 108 (2009); Practice Book § 39-5 (2); see also Mason

v. State, 302 Md. 434, 440, 488 A.2d 955 (1985) (nolle as part of plea agreement

tantamount to dismissal of nolled charge); or as part of an agreement whereby

- 24 -

the defendant provides something else of benefit to the state or the victim in

exchange for entry of a nolle. See, e.g., People v. Reagan, 395 Mich. 306, 317-

18, 235 N.W.2d 581 (1975) (enforcing agreement in which prosecution would

enter nolle if defendant passed polygraph examination); see also Holman v.

Cascio, 390 F.Supp.2d 120, 123-24 (D. Conn. 2005) (‘a nolle will preclude a

subsequent case for malicious prosecution [due to lack of a favorable

termination of the prior criminal case] when it was made as part of a plea

bargain or under other circumstances that indicate that the defendant received

the nolle in exchange for providing something of benefit to the state or victim’).

Bilateral agreements in which the defendant provides a benefit to the state or

the victim other than a guilty plea to a charge are typically treated as the

functional equivalent to a plea agreement, in that subsequent prosecution is

barred as long as the defendant has performed his obligation. See People v.

Reagan, supra, at 309, 235 N.W.2d 581 (nolle agreement was ‘a pledge of

public faith which became binding when the [n]olle prosequi order was

approved by the trial judge’); see also Bowers v. State, 500 N.E.2d 203, 204

(Ind. 1986) (enforcing agreement not to prosecute in exchange for defendant’s

provision of information sufficient to obtain search warrant); State v. Franklin,

147 So.3d 231, 238 (La. App. 2014) (enforcing agreement not to prosecute

conditioned on defendant’s successful completion of pretrial diversion

program), cert. denied, 159 So.3d 460 (La. 2015); Jackson v. State, 358 Md.

259, 262, 277-78, 747 A.2d 1199 (2000) (enforcing agreement in which

defendant waived speedy trial rights in exchange for state’s promise to dismiss

charges if DNA analysis of certain evidence came back negative).” Id. at 1042.

The Kallberg court enforced an agreement whereby the prosecution agreed to nol-

pros four felony counts in exchange for the defendant agreeing to make a donation

of $271 to the Connecticut Criminal Injuries Compensation Fund. Id. at 1038, 1048.

¶ 58 At oral argument, defense counsel was asked whether this court had ever

recognized a distinction between a unilateral and bilateral nolle. Defense counsel

conceded that this court had not used those precise terms but argued that the

distinction was implicit in this court’s case law. We agree. While it is true that no

Illinois court has used the term “bilateral nolle,” this court has clearly recognized

the principle that a nolle entered as part of an agreement bars further prosecution.

This court’s opinion in Starks was grounded in out-of-state cases that barred further

- 25 -

prosecution after a nolle prosequi because the State had breached the terms of an

agreement. Starks relied on three out-of-state cases that had enforced agreements

where the prosecution agreed to dismiss charges if the defendant passed a

polygraph examination: Reagan, 235 N.W.2d 581; Butler, 228 So. 2d 421; and

Davis, 188 So. 2d 24. Reagan was one of the very cases that Kallberg relied on in

its discussion of a nolle entered as part of a bilateral agreement. See Kallberg, 160

A.3d at 1042. In Reagan and Butler, the initial charges against the defendants had

been dismissed via a nolle prosequi, and in both cases, the courts held that further

prosecution was barred because of an agreement between the prosecution and the

defense. 3 See Reagan, 235 N.W.2d at 583, 587; Butler, 228 So. 2d at 423-25. The

Starks court specifically acknowledged this in discussing these cases. See Starks,

106 Ill. 2d at 449-52.

¶ 59 Moreover, Starks itself was a case in which the parties had bargained for a

nolle prosequi. As we discussed above, this court in Starks remanded the case to

the trial court for an evidentiary hearing to determine if the parties had entered into

an agreement to dismiss the charges if the defendant passed a polygraph. On

remand, the trial court “found the State had failed to fulfill its promise to nol-pros

the charge if defendant passed a polygraph examination.” People v. Starks, 146 Ill.

App. 3d 843, 844 (1986). In accordance with this court’s mandate, the trial court

dismissed the charge. Id. at 846. The appellate court affirmed. Id. at 848. The court

rejected the State’s argument that it was unfair to enforce such pretrial negotiations

as binding contracts. Id. at 847-48. The court held that, because the defendant

fulfilled his part of the agreement, the State was required to fulfill its part of the

bargain. Id. at 848. Neither the trial court nor the appellate court put any

significance on the fact that the prosecution had promised a nolle prosequi in

exchange for the defendant passing the polygraph. Rather, they both acknowledged

that the defendant fulfilling his end of the bargain meant that dismissal of the charge

was required. Id. at 846, 848.

¶ 60 Case law thus establishes that, if a dismissal is entered as part of a

nonprosecution agreement between the State and the defendant, the manner of the

dismissal is not important. In fact, this court had recognized this principle long

3

In Davis, the initial charges were quashed because of the agreement. See Davis, 188 So. 2d at

25-26.

- 26 -

before Starks. In People v. Bogolowski, 317 Ill. 460 (1925), this court allowed the

defendant, who had testified against his codefendants, to withdraw his guilty plea

after concluding that the State had breached a cooperation plea agreement. As part

of its analysis, this court noted that a cooperation-immunity agreement could be

perfected by entering a nolle prosequi:

“The English practice of continuing the case against an indicted accomplice

who has turned State’s evidence and testified against his confederates to enable

him to obtain a pardon, which he may plead in bar of the indictment, has never

prevailed in Illinois. In this State the method has been, in accordance with the

practice stated in Bishop’s New Criminal Procedure, (vol. 2, secs. 1161, 1166,)

either for the State’s attorney to enter a nolle prosequi and call the defendant

thus discharged as a witness, or to require him to plead guilty and examine him

as a witness, after which, if his testimony shows a full and truthful disclosure

of the facts, his plea may be set aside and a nolle prosequi or some other form

of discharge may be entered.” Id. at 467.

Bogolowski also quoted approvingly from United States v. Lee, 26 F. Cas. 910

(C.C.D. Ill. 1846) (No. 15,588):

“ ‘The government is bound in honor, under the circumstances, to carry out the

understanding or arrangement by which the witness testified, and admitted, in

so doing, his own turpitude. Public policy and the great ends of justice require

this of the court. If the district attorney shall fail to enter a nolle prosequi on the

indictment against Lee the court will continue the cause until application can

be made for a pardon. The court would suggest that to discontinue the

prosecution is the shorter and better mode.’ ” Bogolowski, 317 Ill. at 464

(quoting Lee, 26 F. Cas. at 911).

¶ 61 And in People v. Johnson, 372 Ill. 18 (1939), this court held that further

prosecution after the defendants had performed their part of a nonprosecution

agreement was barred even when the original indictment was dismissed by a motion

to strike with leave to reinstate. This court reasoned as follows:

“The People, acting through their duly constituted authorities, reached an

agreement with defendants at the time the motion was made to strike the

indictment. In pursuance of this agreement, the People accepted $21,000 from

- 27 -

defendants in open court, in the following December (according to McArdle)

were paid $13,000 in one sum on the back tax account and in subsequent months

were paid about $10,000 more. In view of these substantial payments by

defendants, the prosecuting officers are in honor bound to carry out the terms

of their agreement. If the administrative and prosecuting agencies of the People

fail to keep their legitimate agreements, public policy and the great ends of

justice require the court to prevent such breaches of faith. People v. Bogolowski,

317 Ill. 460.” Id. at 26.

¶ 62 We thus disagree with the State’s position that the dismissal of the first case by

nolle prosequi means that the State was allowed to bring a second prosecution

against defendant. Because the initial charges were dismissed as part of an

agreement with defendant and defendant performed his part of the agreement, the

second prosecution was barred. The parties bargained for a dismissal, and the

nolle prosequi was simply the means by which the State effectuated the agreement.

To see the extreme unfairness arising from the State’s position, consider a

hypothetical in which the terms of the agreement were different. For instance,

assume that the terms were along the lines of what State’s Attorney Foxx told the

OSP that she thought the terms should be. In exchange for a dismissal, defendant

admitted facts of wrongdoing in open court, agreed to do 100 hours of community

service working with victims of hate crimes, and voluntarily made $130,000 in

restitution to the Chicago Police Department. After defendant performed the

community service and sent $130,000 to the Chicago Police Department, the State

dismissed the charges by way of nolle prosequi. If the State’s position is correct,

that means that the State could then file a new indictment against defendant and

seek the maximum prison sentence. The State has not cited any authority that would

support such a conclusion.

¶ 63 We echo Justice Lyle’s point about the terrible policy consequences that would

follow from adopting the State’s position. Justice Lyle noted that the Cook County

circuit court’s administrative orders on the deferred prosecution program direct that

charges should be dismissed by nolle prosequi upon successful completion of the

program. See Cook County Cir. Ct. G.A.O. 2011-03 (Feb. 17, 2011) (“If the

candidate successfully complies with all of the conditions of the agreement, the

State’s Attorney’s Office shall motion the case up in Branch 9. The court shall be

advised in the premises and the state shall nolle prosequi all charges against the

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candidate.”); Cook County Cir. Ct. G.A.O. 2011-06 (Feb. 28, 2011) (stating “[i]f

the candidate successfully completes the program, his or her case will be

nolle prosequi by the state’s attorney”). As Justice Lyle noted:

“If a nolle agreement has no effect, the State can reinstate charges for any

number of defendants for whom it has entered nolles. The OSP reports indicated

that the Cook County State’s Attorney’s Office, in the two years prior to

Smollett’s disposition, had referred over 5000 individuals into the DPP. I have

noted that the guidance from the administrative order is for the State to nol-pros

the case after completion of the program. This opinion has the effect of scaring

every defendant who entered the DPP and completed it successfully, that the

State can reinstate charges against them as long as it does not run afoul of the

statute of limitations. This does not just affect the defendants, as in most

circumstances, the State contacts victims before entering into a deferred

prosecution agreement with the defendants. As a result, this ruling could reopen

cases that victims had thought were previously resolved.” 2023 IL App (1st)

220322, ¶ 174.

Such a result would be completely untenable. As the court held in State v. Platt,

783 P.2d 1206, 1206-07 (Ariz. Ct. App. 1989), deferred prosecution agreements are

contractual in nature, and allowing the government to rescind the agreement after

the defendant had fully performed under the agreement would comport “neither

with ordinary contract principles nor with the more expansive notions of

fundamental fairness that control the relations between a state and its citizens.” It

has simply never been the case that disposition by way of nolle prosequi always

means that the State can bring new charges, and we decline to adopt such a rule

now.

¶ 64 C. The Judge in the Appointment Proceeding Describing the

Original Prosecution as Null and Void Does Not Preclude

Defendant From Relying on the Agreement

¶ 65 Finally, the State makes a brief three-sentence argument that defendant may not

make an argument based on a nonprosecution agreement in the original case

because Judge Toomin found those proceedings to be void and defendant did not

appeal from that order. We disagree. A circuit court’s mere use of the word “void”

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to describe another circuit court’s judgment would not make it so. This court

recognizes only two circumstances in which a judgment will be considered void:

(1) when it is entered by a court that lacked personal or subject-matter jurisdiction

or (2) when it is based on a statute that is facially unconstitutional and void

ab initio. People v. Stoecker, 2020 IL 124807, ¶ 28. The most recent cases cited by

Judge Toomin thus rejected the proposition from earlier cases that a prosecution by

an improper prosecutor is null and void. As explained by the court in People v.

Woodall, 333 Ill. App. 3d 1146, 1159 (2002):

“Any defect in an attorney’s appointment process or in his or her authority to

represent the State’s interests on a given matter is not fatal to the circuit court’s

power to render a judgment. The right to be prosecuted by someone with proper

prosecutorial authority is a personal privilege that may be waived if not timely

asserted in the circuit court.” (Emphasis added.)

In People v. Jennings, 343 Ill. App. 3d 717, 726-27 (2003), the court relied on

Woodall to hold that defendant was not entitled to have his conviction overturned

because of a prosecutor’s defective commission to prosecute because he had never

objected to the court’s recognition of the person as a prosecutor. In every case cited

by Judge Toomin, it was the defendant who was arguing that the prosecutor was

not authorized to prosecute. Here, defendant has never argued that the CCSAO was

not authorized to prosecute. The proper prosecutor rule exists to protect defendants,

not to allow the State to take advantage of its own errors to get a do-over.

¶ 66 Regardless, even if we accept Judge Toomin’s reasoning that the original

proceedings were void because there was “no State’s Attorney” when those

proceedings took place, the effect on defendant is exactly the same. He performed

his end of the agreement and forfeited $10,000. If the previous proceeding is null

and void, defendant could rightly wonder what happened to his $10,000. We

specifically held in Stapinski that it was “not important” whether the cooperation

agreement that the defendant entered into with the State was valid, as an

“unauthorized promise may be enforced on due process grounds if a defendant’s

reliance on the promise has constitutional consequences.” Stapinski, 2015 IL

118278, ¶ 55. Here, defendant entered into the agreement with full-time, licensed

attorneys of the CCSAO, who—even if they did not have actual authority—

unquestionably had apparent authority. And defendant relied on that agreement to

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his detriment. We have already held that his reliance had constitutional

consequences. Defendant was thus not foreclosed by Judge Toomin’s order from

raising his argument about the nonprosecution agreement.

¶ 67 CONCLUSION

¶ 68 We are aware that this case has generated significant public interest and that

many people were dissatisfied with the resolution of the original case and believed

it to be unjust. Nevertheless, what would be more unjust than the resolution of any

one criminal case would be a holding from this court that the State was not bound

to honor agreements upon which people have detrimentally relied. As the Supreme

Court of Pennsylvania recently stated when enforcing a prosecutorial promise not

to prosecute:

“It cannot be gainsaid that society holds a strong interest in the prosecution of

crimes. It is also true that no such interest, however important, ever can eclipse

society’s interest in ensuring that the constitutional rights of the people are

vindicated. Society’s interest in prosecution does not displace the remedy due

to constitutionally aggrieved persons.” Cosby, 252 A.2d at 1147.

That court further noted the consequences of failing to enforce prosecutorial

promises when a defendant has relied on them to his detriment:

“A contrary result would be patently untenable. It would violate long-cherished

principles of fundamental fairness. It would be antithetical to, and corrosive of,

the integrity and functionality of the criminal justice system that we strive to

maintain.” Id.

¶ 69 We reverse the judgment of the appellate court, reverse the judgment of the

circuit court, and remand the cause with directions for the circuit court to enter a

judgment of dismissal.

¶ 70 Judgments reversed.

¶ 71 Cause remanded with directions.

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¶ 72 CHIEF JUSTICE THEIS and JUSTICE CUNNINGHAM took no part in the

consideration or decision of this case.

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