Ex-Judge Fights for Probe of Jussie Smollett Case

CHICAGO (CN) – Calling the situation a “mess,” a retired judge argued in court Friday for the appointment of a special prosecutor to investigate Cook County State’s Attorney Kim Foxx’s handling of “Empire” actor Jussie Smollett’s hate-crime case.

Foxx came under fire after her office dropped all 16 felony counts against Smollett stemming from his alleged staging of a hate crime against himself in Chicago early this year.

Former state appeals court judge Sheila O’Brien walks out of the criminal courthouse in Chicago on May 2, 2019, after a hearing about appointing a special prosecutor to investigate the handling of “Empire” actor Jussie Smollett’s case. (Ashlee Rezin/Chicago Sun-Times via AP)

The prosecutor said she had recused herself from the case out of an “abundance of caution,” due to having contact with one of Smollett’s family members before he turned from victim to suspect.

It was later revealed that she was still speaking with prosecutors about it. Foxx also never filed a paperwork legally recusing herself, a fact with which she has defended her actions.

Cathy McNeil Stein, an attorney with Foxx’s office, said in court Friday that Foxx was not using the word in a legal sense, only meaning that she would step away from the case.

“When a lawyer or judge says recuse, that is a magic word,” responded former appellate judge Sheila O’Brien, who filed the petition to appoint a special prosecutor.  

“Lawyers do not use the word recuse in a colloquial sense,” she continued. “They know when they’re acting as lawyers what that means.”

O’Brien further argued that Foxx “chose to say one thing and do another.”

“That creates a mess,” she said.

“What effect does that have on Jussie Smollett’s prosecution?” asked Judge Michael P. Toomin.

Stein responded that it doesn’t, saying the discussion is about semantics and not Foxx’s actual actions.

The state’s attorney was only being careful and never had a conflict of interest to begin with, Stein added, pointing out that Foxx being cautious does not mean her office as a whole did not do its job correctly.

Stein warned that granting O’Brien’s petition would set a “dangerous precedent” in which the public could question every court outcome just because they didn’t like it.

Besides, she said, “a process is already underway to assure the public that nothing was improper.”

The Cook County Office of the Inspector General is investigating the situation, using Smollett’s case files that Judge Steven G. Watkins, who presided over the actor’s short-lived criminal case, ruled to unseal last week.

O’Brien expressed concern that the inspector general could only discover facts and present his findings, and could not take any legal action against Foxx like a special prosecutor could.

Friday’s hearing got off to a rocky start with Judge Toomin denying seven motions filed by O’Brien, some of which were an attempt to overturn his decision two weeks earlier that her petition not be moved to another county or another judge within Cook County.

The petition was transferred to Toomin, the presiding judge for the Juvenile Justice Division, by Presiding Criminal Judge LeRoy L. Martin Jr. after O’Brien took issue with the fact that Martin’s son works as an attorney in Foxx’s office.

O’Brien also asked for further discovery and to obtain depositions from Foxx and others involved, but an impatient Judge Toomin insisted arguments on the merits of her petition be made Friday as planned.

“If you want to be heard I’ll listen to you,” he told her.

Toomin is set to rule on the appointment of a special prosecutor on June 21.

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