Jussie Smollett: What is nolle prosse and what does it mean in 'Empire' actor's case?

Analysis: The stunning twist in Smollett's case raised questions about why prosecutors made their decision and whether the "Empire" actor should've faced a trial,

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By Danny Cevallos

Chicago prosecutors have dropped all charges against "Empire" actor Jussie Smollett weeks after indicting him on 16 felony counts for allegedly filing a false police report.

At a news conference in February, Chicago Police Superintendent Eddie Johnson accused Smollett of orchestrating an alleged hate crime on himself.

It appears Johnson’s position remains the same, even after the prosecution’s surprise motion to “nolle prosse” the case was granted by the court on Monday.

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“Nolle prosse” is shorthand for the Latin phrase “nolle prosequi,” which means “not to wish to prosecute.” It is a prosecutorial option borrowed from the English common law, dating to the 1600s. In Illinois, it is the formal entry on the record of the state’s unwillingness to prosecute a charge.

A nolle prosequi is not an acquittal. A nolle prosse does not necessarily prevent a second attempt at prosecution for the same offense. But a prosecutor volunteering to nolle prosse a case is as close as a defendant gets to total victory.

Ordinarily, prosecutors do not voluntarily dismiss charges unless something about their case suddenly goes south. Sometimes witnesses change their stories. Sometimes new evidence exonerates a defendant. Initially this appeared to be a possible reason for the unexpected nolle prosse motion to dismiss.

It now seems that case implosion was not the reason for the dismissal. Shortly after it was announced, Johnson and outgoing Mayor Rahm Emanuel held a news conference in which they split with the prosecutor’s office. Johnson stood by the original charging decision, with Emmanuel calling the dismissal a “whitewash” of justice.

The prosecutor’s office insisted that Smollett’s case was treated like the 5,700 other “cases for alternative prosecution” over the last two years.

If the data cited by the prosecutor’s office are true, that’s a powerful argument justifying their decision to drop charges. In general, similarly situated defendants should not receive “grossly disparate” punishment. And the reality is this: As deplorable as Smollett’s alleged conduct might have been, his was a nonviolent “disorderly conduct” offense. Courts across the country are bursting at the seams with low-level nonviolent felonies, and prosecutors have to choose which ones they take to trial, and which ones they are going to make offers of disposition to save resources.

The Smollett case involves one factor that takes it out of the heartland of ordinary disorderly conduct cases: notoriety. When a celebrity falsely reports a socially significant offense like hate crime, it wastes resources in a way that a regular person’s false report does not. Like it or not, the Chicago PD and prosecutors likely devoted significantly more time and energy to a celebrity’s alleged attack than they did to an ordinary false report crime.

There’s an argument that celebrity false hate crime reports are more egregious than regular person false crime reports because they alarm the community more, and fritter away police and prosecutorial resources. That fact alone could have justified the prosecutor’s office not treating Smollett’s case like the thousands of other cases offered pretrial diversion or deferred prosecution for similar offenses.