Special prosecutor to probe handling of Jussie Smollett criminal case

Jussie Smollett speaks to reporters at the Leighton Criminal Court Building after prosecutors dropped all charges against him in March.

A Cook County judge on Friday ruled that a special prosecutor should further investigate the Jussie Smollett case and how Cook County State’s Attorney Kim Foxx and her office handled the decision to drop charges against the “Empire” actor.

In a stinging critique of Foxx’s office, Judge Michael Toomin wrote in his 21-page order that “the unprecedented irregularities identified in this case warrants the appointment of independent counsel to restore the public’s confidence in the criminal justice system.”

Toomin’s order gives the special prosecutor a wide-ranging mandate, including further prosecution of Smollett, if warranted, as well as any other crimes that were “committed in the course of the Smollett matter.”

Toomin ruled that Foxx should have requested a special prosecutor when she decided to recuse herself from Smollett’s case in February, shortly before the actor was charged with making a false report to police.

Toomin said Foxx had no power to recuse herself and then assign decision making in the case to her top deputy, Joseph Magats.

“There was no duly elected state’s attorney when Jussie Smollett was arrested. Ms. Foxx had already effected her recusal,” Toomin said, nor was there any legally appointed prosecutor when Smollett was charged, or the charges dismissed.

Toomin expressed concerned about Foxx’s decision to delegate case to Magats.

“There isn’t an office of ‘acting state’s attorney.’ It existed only . . . in the imagination of Ms. Foxx,” Toomin said.

Foxx issued a statement reacting the ruling:

“I am pleased that the court agreed there was no conflict of interest here. Regarding recusal, I followed the advice and counsel of my then Chief Ethics Officer. 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,” Foxx said. “As always, I remain committed to transparency, justice, and the public safety of the communities we serve.”

Foxx’s office did not immediately respond when asked if they would appeal Toomin’s rulling. The Chicago Sun-Times was unable to reach Smollett’s attorneys.

The Chicago Police Department pledged to cooperate with the special prosecutor.

“We stand firmly behind the work of the detectives in investigating the fabricated incident reported by Jussie Smollett & #ChicagoPolice will fully cooperate with the court appointed special prosecutor,” police spokesman Anthony Guglielmi tweeted.

State law requires Toomin to first request that the Illinois Attorney General’s Office or the state Appellate Prosecutor take over the case, then extend the request to the elected prosecutors across the state.

If none of those public agencies volunteer to take on the case, a private lawyer can be hired at county expense. Judge Vincent Gaughan reached out to state’s attorneys in every county in the state in search of someone to handle the prosecution of Chicago Police Officer Jason Van Dyke. Only Joseph McMahon, the state’s attorney in Kane County, volunteered.

Earlier this year, the Fraternal Order of Police joined suburban police chiefs in demanding the state’s attorney’s resignation. The FOP has also demanded a federal investigation into Foxx’s handling of the Smollett case.

Fraternal Order of Police President Kevin Graham speaks during protests against Cook County State’s Attorney Kim Foxx outside the county administration building on April 1, 2019.

On Friday, Fraternal Order of Police President Kevin Graham called the appointment of a special prosecutor an “excellent move” to make certain that “proper justice is applied” and that “the people of Cook County have been served well.”

“It was improper that [there was] ex parte communications between Jussie Smollett’s attorney and her prior to her making a decision not to prosecute this case or to let it go,” Graham said.

“If a police officer has ex parte communication with a defendant’s attorney, there’d be an investigation because we want to know that things were not handled improperly or that there wasn’t anything improperly going on.”

Retired appellate court justice Sheila O’Brien speaks to reporters Friday.

Retired appellate court Justice Sheila O’Brien in April filed a petition to appoint a special prosecutor, citing her position as a longtime member of the Cook County legal community who felt the local criminal justice system had become a subject of “ridicule” because of the unorthodox handling of the case.

O’Brien included a timeline of events and press accounts, showing that Foxx, during the early days of the investigation, had talked about the case with one of Smollett’s family members at the urging of Tina Tchen, a Chicago lawyer and activist who had once served as chief of staff for first lady Michelle Obama. O’Brien also noted that Foxx publicly stated she had recused herself from Smollett’s case, a decision the state’s attorney had made just days before the actor was charged.

Foxx and her staff later backpedaled to say that Foxx had recused herself in a “colloquial” sense, by delegating decision-making the case to her top deputy, Joe Magats. O’Brien argued that “recuse” is a legal term, and state law would have required the entire office to step aside for a special prosecutor if the elected state’s attorney herself had a conflict of interest.

Toomin agreed, writing that “discerning members of the public have come to realize that the ‘recusal that really wasn’t’ was purely an exercise in sophistry.”

Foxx, represented by staff lawyers from the state’s attorney’s civil division, had argued that O’Brien’s petition, if granted, would set a precedent that any citizen could demand a special prosecutor to review any case where they disagreed with the actions of the elected prosecutor or their office. An investigation by the county Office of the Independent Inspector General, which Foxx requested, will provide the same answers O’Brien is seeking, the state’s attorney’s office has argued.

Cook County State’s Attorney Kim Foxx

O’Brien also filed a flurry of briefs, motions and subpoenas that ruffled the feathers of the first judge to hear her petition, LeRoy Martin Jr.

O’Brien asked Martin to recuse himself because Martin’s son was a prosecutor in Foxx’s office. Martin grudgingly reassigned the case to Toomin, and O’Brien immediately demanded to know how Martin picked Toomin for the job.

Toomin ruled against nearly all of O’Brien’s requests, and canceled subpoenas the retired judge had issued for Foxx, Magats and Tchen. He also ruled against O’Brien’s request that a judge from outside Cook County make the decision

Toomin, who heads the county’s Juvenile Court division, is the longest-tenured judge in Cook County and has twice previously made the call on whether a special prosecutor was needed to investigate the handling of a high-profile case.

In 2012, he appointed Dan Webb to investigate the death of David Koschman, who died after he was punched by Richard “R.J.” Vanecko, a nephew of former Mayor Richard M. Daley. In 2000, Toomin refused to appoint someone to probe the police investigation of the murder of 11-year-old Ryan Harris, which led to charges against two boys, ages 7 and 8, who were later cleared.

The disputed facts around Smollett’s case still could be aired in a number of other courtrooms. The city under former Mayor Rahm Emanuel filed a civil lawsuit against the actor, demanding that he refund $160,000 spent on police overtime investigating his case. And two brothers who claim Smollett hired them to fake the hate crime attack have sued the actor’s Hollywood lawyers for defamation.

Jussie Smollett case: Special prosecutor order by Bill Ruminski on Scribd