Judge Considers Appointing Special Prosecutor in Smollett Case

In this Feb. 22, 2019 file photo, Cook County State’s Attorney Kim Foxx speaks at a news conference in Chicago. (AP Photo/Kiichiro Sato, File)

CHICAGO (CN) – A hearing to determine whether a special prosecutor will be appointed to investigate Cook County State’s Attorney Kim Foxx’s handling of “Empire” actor Jussie Smollett’s hate-crime case was postponed Thursday because of conflict of interest concerns.   

A petition asking for a prosecutor to look into how Foxx handled the Smollett fiasco was filed with the county’s inspector general office by retired appellate judge Sheila O’Brien.

Cook County Criminal Court Judge LeRoy Martin Jr., who was tasked with making the decision, has a son who happens to work in Foxx’s office.

O’Brien argued in court Thursday that the judge should recuse himself from any further dealings with the case due to this potential conflict of interest, and he agreed to take time to consider it. A new hearing is scheduled for May 10.

Both Foxx and Smollett filed separate motions to dismiss the petition and quash subpoenas to appear in court.  Smollett did not appear Thursday.

The “Empire” actor was indicted by a grand jury on 16 felony counts of disorderly conduct for allegedly faking a hate crime against himself in Chicago this past January.

Smollett claims two men attacked him on the street, yelling homophobic and racist comments and putting a rope around his neck and continues to say he told the truth about what happened.

The state’s attorney’s office quickly dropped the charges in exchange for Smollett’s $10,000 bond, sparking outrage from the public and city officials. Mayor Rahm Emanuel called the decision a “whitewash of justice.”

Although Foxx had recused herself from the case, citing a “familiarity with potential witnesses,” leaked text messages show she was still involved, telling prosecutors they were “over-charging” the “washed up” actor.

Foxx also had contact with one of Smollett’s family members at the request of Tina Tchen, a former aide to Michelle Obama, and asked for the case to be turned over to the FBI.

The state’s attorney has defended her actions, saying her office often drops charges for nonviolent crimes to make time to prosecute other cases, and claims she did nothing wrong in how she handled Smollett’s case.

Two of Foxx’s aides, the chief ethics officer and the chief of the convictions integrity unit, have since resigned.

Chicago has filed its own civil lawsuit against Smollett to recover the $130,000 that the city says was spent on investigating his claims, which Emanuel and Police Superintendent Eddie Johnson maintain were a hoax.

Adding to the litigation swirling around the incident, brothers Olabinjo and Abimbola Osundairo, who say Smollett paid them $3,500 to fake the attack, are suing the actor’s attorneys for defamation.

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