CHICAGO (AP/WBBM NEWSRADIO) — A veteran Cook County Judge decided Friday that a special prosecutor will be appointed to look at how the Jussie Smollett case was handled by State’s Attorney Kim Foxx. Jussie Smollett could still face criminal charges.
Cook County Judge Michael Toomin cited unprecedented irregularities in how State’s Attorney Kim Foxx handled the case - improperly recusing herself, but not her office, after having contact with Smollett representatives and then quietly dropping 16 felony counts of disorderly conduct.
Foxx had been in contact with a relative of Smollett and had been approached by former first lady Michelle Obama's one-time chief of staff on behalf of Smollett's family, and she explained at the time that she was recusing herself to avoid "even the perception of a conflict" of interest.
In his ruling, Toomin said he had no problem with Foxx's recusal, but that she had no right to select someone from her office to handle the prosecution, saying what she did amounted to naming her own special prosecutor.
"There isn't an office of the 'acting state's attorney.' It existed only ... in the imagination of Ms. Foxx," Judge Toomin said.
Foxx has been under fire for her handling the investigation, including from the Chicago Police Department and the former mayor. Her office charged Smollett with 16 counts of disorderly conduct after police concluded that Smollett had staged the early-morning Jan. 29 attack on himself and had paid two acquaintances to help him pull it off. But it stunningly dropped all of the charges weeks later, prompting an outcry from police and leading a former state appellate judge, Sheila O'Brien, to call for a special prosecutor.
In calling for a special prosecutor, O'Brien said it appeared to her and others that Smollett had "received special treatment" from Foxx's office.
“I did this because it had to be done and no one had done it,” she said. “The law of the special prosecutor is very obvious and it is very clear. It had to be done. Somebody had to do this and who was going to do it – the other state’s attorneys? They can’t do that to their own boss.
“The most important thing, as the judge indicated, the confidence in our judicial system will be restored to all of us; that this case will be handled by somebody who does not have a conflict,” O'Brien said.
Foxx defended her handling of the case and said she would welcome an independent investigation. But her office opposed such a special prosecutor, explaining that the investigation would just duplicate the efforts of a county inspector general's office probe that is already underway.
Jussie Smollett can still be tried for allegedly staging a racist and homophobic attack on himself.
Gloria Schmidt, the attorney for the Osundairo brothers who were allegedly paid by Smollett to stage the attack, said they are fully ready to cooperate.