CHICAGO _ In a surprise move, a Cook County judge said Friday he has decided to let the presiding judge in the Juvenile Division rule on whether a special prosecutor should be appointed to investigate the sudden dismissal of charges against "Empire" actor Jussie Smollett by State's Attorney Kim Foxx's office.
Judge LeRoy Martin Jr. insisted he was not recusing himself from the matter as Sheila O'Brien, a former state appellate judge who is pushing for the special prosecutor, had sought. He said he was transferring the matter to Judge Michael Toomin, a respected jurist with decades of experience.
"I am not unmindful that the appearance of justice is important," Martin said. "I think it is prudent and wise that I transfer the matter."
A hearing last week on the issue grew unexpectedly heated after O'Brien moved at the last minute for Martin to step aside since his son is a Cook County assistant state's attorney.
O'Brien suggested the relationship could pose a conflict of interest for Martin to weigh Foxx's credibility if she was called as a witness during the proceeding.
Martin, the presiding judge of the Circuit Court's Criminal Division who works from the Leighton Criminal Court Building, said last week he found it troubling that his family had been brought into the case. Martin's son, LeRoy III, works as a prosecutor in a separate courthouse and played no role in the Smollett prosecution.
Prosecutors from Foxx's office also slammed the request for Martin to step aside. In a filing this week, they said extensive case law indicates that a judge doesn't have a conflict of interest simply because of a family relationship to a prosecutor or public defender.
"To recuse in this case ... would set a dangerous precedent by inviting any would-be haymaker, from criminal defendant to political opponent, to impugn the Court's integrity for the purpose of judge-shopping," Assistant State's Attorney Cathy McNeil Stein wrote in the filing.
In a written response, O'Brien contended that the mere appearance of impropriety, however, is enough for Martin to recuse himself.
"There are hundreds of judges in Illinois who do not have a son hired by this particular State's Attorney nor working under her supervision. Hundreds," she wrote. "Why not have one of them hear this Petition to assure the public of the integrity of our courts?"
O'Brien has gone even further, suggesting any Cook County judge could have a conflict of interest if Foxx is called as a witness. She has proposed picking a judge from another county to decide if a special prosecutor should be appointed.
In their filings, Cook County prosecutors have called that effort "a frivolous extension of her parade of conflicts allegations that, if heeded, would make a mockery of the judicial system."
In her petition seeking a special prosecutor, O'Brien highlighted how Foxx said she recused herself in the early stages of the investigation _ only to claim recently that it was not a recusal "in the legal sense" that would have required the entire office to withdraw from the prosecution.
O'Brien alleged that Foxx's actions created "a perception that justice was not served here, that Mr. Smollett received special treatment."
Both county prosecutors and Smollett's attorneys have said the petition is legally flawed and a special prosecutor would duplicate efforts already underway by the county inspector general, who is conducting a review of the case at Foxx's request.
Smollett, who is African-American and openly gay, found himself at the center of an international media firestorm after he reported in late January being the victim of an attack by two people shouting racist and homophobic slurs.
But after Chicago police investigated, Smollett was charged with 16 felony counts of disorderly conduct alleging he staged the attack.
Foxx, though, faced fierce criticism after her office dismissed the charges against Smollett with little explanation less than a month after he was indicted.
Prosecutors at first insisted that the evidence against the actor was solid, but then Foxx backpedaled in a Tribune op-ed when she said unspecified aspects of the case would have made a conviction "uncertain."
