Judge Keeps Bid for Probe of Smollett Case in Chicago

CHICAGO (CN) – A Cook County judge declined Friday to transfer to another Illinois county a petition seeking a special prosecutor to investigate a state attorney’s handling of “Empire” actor Jussie Smollett’s hate-crime case, inching the decision forward after several setbacks.

Actor Jussie Smollett attends the “Empire” FYC Event in Los Angeles on May 20, 2016. (Richard Shotwell/Invision/AP, File)

Retired appellate judge Sheila O’Brien filed the petition with the criminal court asking for a special prosecutor after Cook County State’s Attorney Kim Foxx came under fire for her office’s decision to drop 16 felony counts of disorderly conduct against Smollett.

The actor, who is black and gay, was charged after allegedly staging a hate crime against himself in Chicago this January. He claims two men attacked him on the street and put a rope around his neck, while city officials maintain it was a hoax.

Foxx had recused herself from the case due to a familiarity with potential witnesses, later admitting she had contact with one of Smollett’s family members.

Leaked text messages show Foxx was still somewhat involved, telling prosecutors working the case that they were overcharging the “washed up” actor.

Cook County Criminal Court Judge LeRoy L. Martin Jr. was set to decide whether Foxx should be investigated, but O’Brien raised concerns about a conflict of interest he may have due to his attorney son working in her office.

Judge Martin said last week that although he had no legal reason to recuse himself, he would agree to transfer the case to Presiding Juvenile Court Judge Michael Toomin.

“You seem to want to do everything your own way,” Toomin told O’Brien at a hearing Friday in a combative exchange about her various motions. “There’s only one judge here.”

Toomin said O’Brien’s request that he ask the Illinois Supreme Court to appoint a judge outside of Cook County “has no basis in law.”

O’Brien argued in court that since the state’s attorney is heavily involved in every court division in the county, any judge in Cook County could then have a potential conflict of interest.

 “We don’t have to do just what is required of us,” she said. “We should take the high road and find someone who doesn’t know anyone involved in this case.”

A representative for Foxx’s office said there was no reason to “disqualify every judge in Cook County.”

Toomin agreed that “there is no indication of any prejudice by anybody.”

O’Brien also questioned why the case had been assigned to Toomin in the first place.

“I hope you and Judge Martin will tell all of us and the public how this came to be,” she said of her motion to supplement the record.

That motion was also denied, with Toomin adding that he heard criminal cases for 20 years and had been appointed twice before to decide on naming a special prosecutor. The judge invited O’Brien to read the rest of his qualifications in the Law Bulletin’s “Sullivan’s Judicial Profiles.”

“[Judge Martin] certainly has the inherent authority to make assignments as he sees proper,” Toomin stated.

The judge granted motions from the state’s attorney and Smollett to quash subpoenas and discovery as improper and premature, saying O’Brien did not show any cause for needing the documents and depositions she asked for.

Foxx herself has asked for Smollett’s criminal case to be unsealed so that the county’s inspector general office can look into how it was handled. A hearing on that issue will be held May 23.

The inspector general office is a fact-finding agency and cannot take any legal action, only make recommendations.

Toomin will hear more arguments from O’Brien, as well as objections from Foxx’s office, on May 31, possibly ruling from the bench the same day.

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