A judge decided to appoint a special prosecutor to investigate the decision by Cook County prosecutors to dismiss all charges against actor Jussie Smollett, who was accused of lying to the police by claiming he was the victim of a racist and homophobic attack in downtown Chicago in January.
In a ruling that leaves open the possibility that Smollett could be charged again, Cook County Judge Michael Toomin suggested that the county’s state’s attorney, Kim Foxx, mishandled the Smollett case by appointing a top aide to oversee it after she recused herself.
Foxx had been in contact with a relative of the actor and had been approached by former first lady Michelle Obama’s one-time chief of staff on behalf of Smollett’s family, and she explained at the time that she was recusing herself to avoid “even the perception of a conflict” of interest.
In his ruling, Toomin said he had no problem with Foxx’s February recusal, but that it should have included a request for a special prosecutor to take over the case. He said she had no right to hand it off to someone from her office, which he said amounted to naming her own special prosecutor.
“State’s attorneys are clearly not meant to have unbridled authority to appoint special prosecutors,” he said. “She appointed [her top assistant] to an office, to an entity, that has no legal existence. There isn’t an office of the ‘acting state’s attorney.’ It existed only ... in the imagination of Ms Foxx.”
“The unprecedented irregularities identified in this case warrant the appointment of independent counsel to restore the public’s confidence in the integrity of our criminal justice system,” the judge said.
Toomin also left open the possibility that the special prosecutor could charge Smollett again — either with the original charges accusing him of lying to police or with other counts.
The Chicago Police Department, which has never disguised its anger over the decision to drop the charges, vowed to assist the special prosecutor.
Toomin’s ruling adds yet another layer to an already complicated case. Weeks after the charges were dropped against Smollett, the city sued him in an attempt to recoup the tens of thousands of dollars the police department spent investigating the case. There was even a defamation lawsuit by the two brothers who allege that Smollett paid them to help him stage the attack on himself.
Fox Entertainment announced in April that Smollett would not appear in season six of ‘Empire,’ which is its last season.