Judge Orders Special Prosecutor To Review Jussie Smollett Case

CHICAGO, IL — A Cook County judge ordered Friday that a special prosecutor be appointed to review how the Jussie Smollett case was handled by State's Attorney Kim Foxx and her office. The judge found Foxx improperly put her top deputy in charge of the case after announcing she had recused herself from the investigation.

Circuit Judge Michael Toomin said the appointee should conduct an independent investigation into all aspects of the case. And "if reasonable grounds exist" to further prosecute Smollett, or if the investigation uncovers other criminal offenses, the special prosecutor may file new charges.

Smollett, 36, is a biracial and openly gay native of Northern California who was previously best-known as an actor on the the Fox television program "Empire," filmed in Chicago.

"But his talents were not destined to be confined to that production," wrote Toomin, describing the case as "truly unique" in his June 21 opinion.

"Rather, in perhaps the most prominent display of his acting potential," the judge wrote, "Smollett conceived a fantasy that propelled him from the role of a sympathetic victim of a vicious homophobic attack to that of a charlatan who fomented a hoax the equal of any twisted television intrigue."

The actor told authorities his assailants shouted slurs at him, claimed that "This is MAGA country," in reference to President Donald Trump's "Make America Great Again" slogan, poured some liquid on him and placed a noose around his neck. His bizarre account was met immediately with a mix of sympathy and skepticism, which Smollett attributed to racism in an ABC interview recorded before his arrest.

Smollett was indicted on 16 counts of disorderly conduct for lying to police about paying $3,500 to brothers Abel and Ola Osundairo in order to carry out a phony racist and homophobic hate crime against him Jan. 29 in the Streeterville neighborhood.

The week before he was changed, Foxx announced she was recusing herself from the case and turning it over to Joseph Magats, her top assistant.

But the judge said this move was improper, finding her deputy "in fact was appointed to a fictitious office having no legal existence." As a result, there was never any "duly elected" prosecutor at the time of Smollet's arrest, initial charging, indictment, arraignment or when his case was dismissed.

Although Foxx made a public announcement saying she had "recused" herself from the case, a spokesperson later told Patch she "did not formally recuse herself," saying that when she said she had, "it was a colloquial use of the term rather than in its legal sense."

During the investigation, Foxx exchanged text messages with a lawyer representing Smollett. She said she still believed he was a victim at that point.

Even after her recusal, Foxx continued discussing the case with her staff, describing Smollett as a "washed up celeb who lied to cops" and suggesting prosecutors had overcharged him in a 16-count grand jury indictment, according to text messages

All charges were dropped in February in exchange for Smollett forfeiting the $10,000 cash portion of his bond and performing some community service at Jesse Jackson's Rainbow PUSH Coalition. The organization acknowledged Smollett had spent time there but said there had been no court-ordered community service there.

Smollett and his attorneys have denied wrongdoing throughout. The deal to drop charges did not include any admission of guilt.

Chicago's city government filed a civil suit against Smollett, demanding more than $390,000 in an attempt to recoup the costs of the investigation and reputational damage.

Police said Smollett orchestrated the hoax as a publicity stunt because he was not getting paid enough by the Fox television show.

A week before the "hate crime" was reported, a letter addressed to Smollett and containing white powder was received at the Cinespace Studios on the Near West Side, where much of the show "Empire" is filmed. If Smollett is found to have sent the letter, he could face additional federal charges.

The petition for a special prosecutor was brought by Sheila O'Brien, a retired Illinois appellate judge. Appearing outside court Friday, she said she was satisfied with the ruling.

"The most important thing as the judge indicated is that the confidence in our judicial system will be restored to all of us, that this case will be handled by someone who does not have a conflict," O'Brien said, according to WLS-TV.

Chicago Police Department chief communications officer Anthony Gugliemi said police intend to fully cooperate with the new special prosecutor.

"We stand firmly behind the work of detectives in investigating the fabricated incident reported by Jussie Smollett," he said.

Foxx released a statement following the judge's ruling saying she was pleased the judge did not find she had a conflict of interest in the case.

"Regarding recusal, I followed the advice and counsel of my then Chief Ethics Officer [April Perry]," Foxx said. Perry resigned from the office in May. "In any event, I respectfully disagree with the court's conclusion that, in the absence of any conflict, the appointment of a special prosecutor is required. As always, I remain committed to transparency, justice, and the public safety of the communities we serve."

Related:

• 911 Calls Released In Jussie Smollett Case
• Judge Unseals Jussie Smollett Case File
• Brothers Sue Smollett's Lawyers For Defamation
• City Of Chicago Sues Smollett For Investigation Costs
• Police Chiefs Vote 'No Confidence' In Foxx After Smollett Case
• Judge Bars Police From Releasing Further Smollett Case Files
• Jussie Smollett: Did Top Prosecutor's Deal Break The Law?