CHICAGO (CN) – An Illinois criminal court judge decided Friday that one of his colleagues will hear arguments for appointing a special prosecutor to investigate Cook County State’s Attorney Kim Foxx’s handling of “Empire” actor Jussie Smollett’s hate-crime case.
Cook County Judge LeRoy L. Martin Jr. did not, however, recuse himself as requested, saying there was no legal reason to do so and it could set a dangerous precedent.
Retired appellate judge Sheila O’Brien had filed a petition with the county’s criminal court asking for the special prosecutor.
Martin was set to hear arguments on the petition last week, but at the hearing O’Brien brought up the fact that the judge’s son works as an attorney in Foxx’s office.
“My son’s involvement in this matter is nonexistent,” Martin said in court Friday, but he sent the petition to Judge Michael Toomin to avoid the appearance of a conflict of interest.
Foxx came under fire after her office abruptly dropped 16 felony counts of disorderly conduct against Smollett for allegedly faking a racist and homophobic hate crime against himself in Chicago this January. The actor claims two men attacked him on the street and put a rope around his neck.
Both the public and city officials expressed dismay at the dismissal of the charges. Chicago Mayor Rahm Emanuel called it a “whitewash of justice” and Police Superintendent Eddie Johnson said the city’s reputation had been “dragged through the mud.”
Foxx had recused herself from the case, citing familiarity with potential witnesses. She later admitted that she had discussed the case with one of Smollett’s family members at the request of former Michelle Obama aide Tina Tchen.
Leaked text messages between Foxx and prosecutors show she was still somewhat involved, telling them that she thought they were “over-charging” the actor.
Foxx has defended her office, citing a routine practice of dropping charges for nonviolent crimes to focus on other cases.
She requested Wednesday that the case documents be unsealed and handed over to the Cook County Office of the Independent Inspector General so it can conduct an investigation into how the case was handled. Smollett’s attorneys have not objected, and a judge is expected to make a decision on May 23.
The inspector general’s office looks into allegations of government corruption and wrongdoing, but is only a “fact-finding agency,” according to its website, and cannot take any legal action.
Foxx isn’t the only one under legal pressure from the incident. Chicago sued Smollett last month to recover the $130,000 it spent on investigating his claims, which the city maintains were all a hoax.
The two brothers who say they were paid by Smollett to stage the late-night attack are also suing the actor’s attorneys, Tina Glandian and Mark Geragos of Geragos & Geragos, for defamation.
Judge Toomin is set to hold a hearing May 17 on the petition for a special prosecutor.