Editorial: A problematic plea deal cries out for an explanation from Cook County State’s Attorney Kim Foxx

Kim Foxx, who is about to leave her post as Cook County state’s attorney, has some new questions to answer. Her imminent exit shouldn’t be cause to dodge them.

The Tribune’s Stacy St. Clair and Christy Gutowski reported Sunday on how Foxx’s office for two years refused to provide defense attorneys with an internal memo outlining improper behavior by one of its veteran prosecutors towards a potential witness in a high-profile murder case — even after a judge ordered them to do so.

What emerges is that two defendants in the 2017 killing of 19-year-old Fontaine Sanders in a North Lawndale park recently obtained a deal from Foxx’s office in which they were allowed to plead to aggravated battery with a firearm instead of standing trial for murder. Having awaited trial in lockup for six years, they will serve another six under the deal before their release.

The judge in the case openly marveled at the defendants’ good fortune. “Sometimes life isn’t fair,” he said.

How the case finally was resolved is a head-spinning tale of mismanagement and questionable prosecutorial behavior combined with a bedeviling issue — reluctant and fearful witnesses — that helps explain Chicago’s woeful record in solving and prosecuting murders.

The assistant state’s attorney in question, Nick Trutenko, is accused of bullying a woman who witnessed the shooting. Among other things, he allegedly threatened to charge her with perjury and called her disgusting when she expressed reluctance to testify before the grand jury. The memo rightly underscored how the threatening words took on “a different connotation when said by a white male prosecutor with power to a Black woman with no power.”

He admitted to much of the witness’ account after she complained, according to the 2019 memo prepared by Risa Lanier, then Foxx’s head of criminal prosecutions. The office labeled the transgression a “teaching moment” and placed the memo in Trutenko’s personnel file. (Lanier since has been promoted to Foxx’s chief deputy.)

Trutenko, who now is facing charges of perjury and obstruction of justice in a separate case, since has been fired. His attorney denies he did anything wrong with the reluctant witness in the Sanders murder.

But that wasn’t the view of Trutenko’s bosses. In the memo, they concluded he had both undermined the prosecution in the murder case and acted counter to Foxx’s emphasis on “diversity, culture and implicit bias.”

In the years afterward, Foxx’s office took extraordinary measures to keep this memo from surfacing. They failed for nearly two years to provide it to defense attorneys in the Sanders murder even though they should have. They also refused to do so in a separate case in which a man prosecuted by Trutenko in the killing of two Chicago police officers more than four decades ago had his conviction overturned. They even refused to make the memo available to attorneys in that separate case after a judge so ordered.

Foxx and her office wouldn’t respond to the Tribune reporters’ questions about why they were so desperate to keep the memo under wraps. That’s unacceptable.

We can imagine why, though.

Trutenko’s alleged behavior is in stark contrast to Foxx’s criminal justice reform agenda. We can see why she might not want the public to know it took place under her watch with no immediate consequences other than a memo stashed in a personnel file.

Likewise, we wonder if keeping the memo out of sight was part of the rationale for the generous plea deal. There was plenty of other evidence with which to prosecute the two defendants other than the reluctant witness’ testimony.

Certainly, that was the view of quoted defense attorneys. One of them planned to subpoena Lanier to testify about the memo and her dealings with Trutenko. The state’s attorney’s office objected. But before the judge could even rule, the plea deal was made.

Foxx’s office told the Tribune’s reporters their decision on the plea deal was based strictly on “facts and evidence” in the case.

It seems an unhappily fitting capstone to an ill-starred tenure. We acknowledge this controversy is different in key respects than previous problems in her office. We’ve been critical of Foxx’s strained relationship with the police, which has hampered the critical job of catching and prosecuting the bad guys.

In this situation, her office appears instead to have strived, initially at least, to protect a prosecutor with a tough-on-crime reputation. But this is just the latest in a string of efforts to hide or obfuscate actions that are questionable at best. Exhibit A, of course, is the Jussie Smollett disaster.

In Smollett’s case, the “victims” were Chicago’s law-enforcement community who wasted time and resources, as well as the city’s reputation. That was bad.

This arguably is worse. The victims here are Fontaine Sanders and his family. His mother, Corniki Bornds, told the Tribune she was outraged at the plea deal.

Another casualty is the cause of justice in Chicago.

* Editor’s note: An earlier version mischaracterized how the office kept an internal memo from defense attorneys in the Fontaine Sanders murder case. The Tribune regrets the error.

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