CHICAGO — A Cook County judge on Friday swatted down a request that a judge from outside the county make the decision whether a special prosecutor should be appointed to investigate the abrupt dismissal of charges against “Empire” actor Jussie Smollett.
During a long and sometimes testy hearing, Judge Michael Toomin rejected the request by Sheila O’Brien, a former state appellate judge, saying she had failed to show that Cook County judges would be too prejudiced to make the decision.
Toomin also denied O’Brien’s attempt — hastily written out longhand during the middle of the hearing at the Leighton Criminal Court Building — to substitute Toomin with another Cook County judge.
Toomin, however, left open the door for O’Brien to file a motion — known as a change of venue — to move the matter outside Cook County or to ask the Illinois Supreme Court to overrule Toomin.
O’Brien strongly hinted during the hearing that she would take her fight to the Supreme Court.
Toomin set a hearing for May 31 on whether he should appoint a special prosecutor. But that proceeding could be delayed or nixed if O’Brien asks the Supreme Court to intervene.
Toomin also tossed out subpoenas that O’Brien had issued for State’s Attorney Kim Foxx and her top deputies to produce documents, saying they were premature and she had not adequately proven they were necessary.
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Toomin is presiding over the matter after LeRoy Martin Jr., the presiding judge of the Circuit Court’s Criminal Division, stepped aside last week from considering the issue. O’Brien had asked Martin to recuse himself, saying he faced a conflict with his son a Cook County prosecutor and Foxx possibly being called as a witness. Martin declined to formally recuse himself but transferred the case to Toomin, saying he did so to avoid any appearance of impropriety.
O’Brien sought the special prosecutor after Foxx faced fierce criticism for her office’s dismissal of all charges against Smollett with little explanation less than a month after he was indicted on charges he staged an attack on himself.
In her petition, O’Brien highlighted how Foxx recused herself early in the investigation after communicating with a Smollett relative — only to later claim that it was not a recusal “in the legal sense” that would have required the entire office to withdraw from the prosecution.
Communications later released to the Chicago Tribune showed Foxx had asked police Superintendent Eddie Johnson to turn over the investigation to the FBI after she was approached by Tina Tchen, a former chief of staff to first lady Michelle Obama.
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 that a special prosecutor would duplicate efforts already undertaken by Cook County Inspector General Patrick Blanchard. At Foxx’s request, Blanchard agreed last month to investigate the office’s handling of the short-lived Smollett prosecution.
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.