Judge Won’t Budge on Special Prosecutor in Jussie Smollett Case

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

CHICAGO (CN) – A judge has upheld his decision to appoint a special prosecutor to investigate Cook County State’s Attorney Kimberly M. Foxx in connection with “Empire” actor Jussie Smollett’s criminal case for faking a hate crime.

Judge Michael P. Toomin denied several motions Wednesday filed by Smollett’s attorneys asking him to reconsider his ruling and let another judge hear their arguments.

Smollett asked that Foxx, whose office brought 16 felony counts of disorderly conduct against the actor this year, not be investigated in a motion to reconsider.

The special prosecutor could also potentially reinvestigate the actor himself, whose story about an attack against him on a late-night Chicago street in January has been deemed a hoax.

Foxx recused herself from Smollett’s criminal case, which was in response to two brothers claiming he paid them $3,500 to stage the homophobic and racist hate crime.

Prosecutors quickly dropped all charges, sparking outrage from the public and city officials.

Retired appellate judge Sheila O’Brien filed a petition to appoint a special prosecutor to look into how Foxx and her office handled Smollett’s case, pointing out that the State’s Attorney was still involved despite her recusal.

“This case has been a travesty of justice and an unprecedented deprivation of Mr. Smollett’s constitutional rights, including the presumption of innocence and right to a fair trial,” the 31-page motion to vacate Judge Toomin’s order states. “The court has accepted false media reports to presume Mr. Smollett guilty of charges which he pleaded not guilty to and which were dismissed against him.”

Toomin, however, will move forward in finding a special prosecutor although no time frame has been given.

The motion filed by Smollet’s attorneys, Mark Geragos and Tina Glandin of Geragos & Geragos, goes on to claim that Abimbola and Olabinjo Osundairo, the brothers who say they were paid to participate in Smollet’s fake attack, are lying.

The actor only paid the Osundarios for physical training and asked for herbal steroids from Nigeria, the motion argues, reiterating the crime they perpetrated was real.

The brothers have sued Geragos and Glandin for defamation in federal court, saying the attorneys have damaged their reputation.

Smollett still faces a civil lawsuit brought by the city of Chicago to recover the $130,000 spent on investigating his allegations.

Geragos & Geragos did not immediately return a request for comment on the judge’s decision.

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