The retired judge whose activism led to a special prosecutor investigation of how the Cook County state’s attorney’s office handled former “Empire” actor Jussie Smollett’s criminal case has been barred from filing motions as the ongoing probe continues.
Just three days after Special Prosecutor Dan Webb announced new charges against Smollett, Judge Michael Toomin Friday thanked former Appellate Court Judge Sheila O’Brien for her “service” but said she no longer had standing to intervene in the case.
Toomin’s ruling came in response to a flurry of filings by O’Brien, who most recently sought to bar State’s Attorney Kim Foxx from using taxpayer money to hire private lawyers to represent her office in the special prosecutor investigation. Toomin tossed that motion and said O’Brien will need permission to make any future filings in the case.
O’Brien retired from the appellate court nearly a decade ago, but she has been filing legal briefs and subpoenas in connection with the Smollett case as “a private citizen,” she said in June.
“Although Ms. O’Brien did a service to the county in filing the petition that she did…that [action] ended with the court granting parts of that petition,” Toomin said, who noted that O’Brien has subpoenaed Foxx to appear in court. “She does not have standing here today to bring any other actions. The actions are to be brought by Mr. Webb as special prosecutor.”
Webb said he had been dealing with the private lawyers over the six months of the investigation, and saw no problem with Foxx’s decision to hire outside counsel. Foxx’s office hired a legal team headed by former federal Judge Ruben Castillo, citing the “onerous” task of reviewing some 100,000 documents tied to the investigation.
Foxx has also retained Washington D.C.-based attorney Michael Bromwich to represent her personally. Bromwich, who sat in the courtroom gallery Friday, said he is representing Foxx for free.
Foxx’s office issued a statement later Friday, noting that Toomin “took the extraordinary step of barring” O’Brien from making any future filings. “We agree with his ruling, as we believe this petition was inappropriate, unwarranted, and without merit,” the statement read. “The State’s Attorney’s Office (SAO) has clear authority to retain outside counsel and routinely does so in matters that require additional capacity or expertise. The SAO continues to fully cooperate with the special prosecutor’s review and looks forward to its resolution.”
After Friday’s hearing, Webb walked quickly past a scrum of reporters and did not respond to questions. Tuesday, Webb’s team announced a six-count grand jury indictment alleging Smollett in 2019 falsely reported to Chicago police that he had been the victim of a racially motivated attack by two men near his home in Streeterville.
Smollett had faced a similar, 16-count indictment sought by prosecutors last year, based on the police investigation that determined the actor had paid two acquaintances to stage the fake attack. Those charges were abruptly dropped three weeks later in an unorthodox move that touched off national controversy.
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Webb was appointed as a special prosecutor in August, and charged with re-investigating the alleged hoax and the state’s attorney’s office decision to drop the case. In a statement released alongside the indictment, Webb said the new charges against Smollett were not necessarily an indication of wrongdoing by Foxx or members of her staff and the investigation in to how the last year’s case was handled is ongoing.
Foxx faces three challengers in her bid for reelection in the Democratic primary, all of whom have put the Smollett case front and center in their critique of the incumbent. Foxx has touted her record of reforms focused on diverting defendants from jail — and had initially said Smollett’s case was typical of the emphasis on “alternative prosecutions.” This week Foxx picked up endorsements from current Democratic presidential front-runner U.S. Bernie Sanders and a string of local pastors. Friday, her campaign said she would meet with U.S. Sen. Tammy Duckworth, D-Il., to accept her endorsement.
