CHICAGO (CN) – An Illinois judge ruled Friday that he will appoint a special prosecutor to investigate how the Cook County state’s attorney handled the criminal case of “Empire” actor Jussie Smollett, who was accused of staging a hate crime.
Smollett was charged with 16 felony counts of disorderly conduct for allegedly orchestrating the incident. The actor claimed two men attacked him in January and put a rope around his neck, but two brothers he knows later told Chicago police they were paid $3,500 to participate in the hoax.
Cook County State’s Attorney Kim Foxx recused herself from the case “out of an abundance of caution” due to familiarity with potential witnesses, but was later found to still be somewhat involved and had not filed official paperwork for recusal.
Foxx’s office came under fire from the public and city officials when all charges were abruptly dropped.
Retired appellate judge Sheila O’Brien filed a petition to get a special prosecutor to look into what happened, which Presiding Juvenile Court Judge Michael P. Toomin finally granted Friday.
Attorneys with Foxx’s office argued in court that she only meant that she was recusing herself in the colloquial sense, whereas O’Brien held that “when a lawyer or judge says recuse, that is a magic word.”
Toomin agreed with O’Brien, quoting John Adams that “facts are stubborn things.”
When Foxx decided not to prosecute Smollett, she said she chose Joseph Magats as a “first assistant state’s attorney” to do the job.
But Toomin noted in court Friday that no such position legally exits.
“It existed only in the eye and the imagination of Ms. Foxx,” the judge said.
Toomin said since Foxx did not have the legal authority to appoint a prosecutor to take her place, “there was no duly elected state’s attorney present” during Smollett’s criminal proceedings.
A special prosecutor will now be appointed by the court, following the correct legal process, to look at the entire case file to determine whether Smollett’s case should be thrown out and re-prosecuted.
The special prosecutor could also bring charges against Foxx and any others involved in the case if they are suspected of crimes stemming from how they handled things.
“This case will be handled by someone that will not have a conflict of interest,” O’Brien told reporters after the ruling. “We’ll get the truth.”
“I did this because it had to be done,” she added. “Somebody had to do this. I had time and a typewriter, and here we are.”
Foxx’s attorneys had no comment about Toomin’s ruling.
Last month, another judge who presided over Smollett’s short-lived case decided to unseal all of the records, making them available to the public and the Cook County inspector general’s office.
Foxx had already asked the inspector general to look over the case and decide if there was any wrongdoing, although that office would not be able to do anything but release the results of its fact-finding.
On top of the possibility of renewed criminal charges, Smollett faces a civil lawsuit filed by the city of Chicago in an attempt to recover the $130,000 it spent on investigating his allegedly false police report.
The two brothers who claim the actor paid them to play the attackers also sued the actor’s attorneys in federal court for defamation.
Toomin said he will begin the procedure to select a special prosecutor, but did not give a specific timeframe for when they will be chosen.
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