CHICAGO — In a surprise move, a Cook County, Ill., judge said Friday that he has decided to let another judge rule on whether a special prosecutor should be appointed to investigate the abrupt 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.
On Friday, Martin was adamant that his son’s employment raised no real conflict of interest, saying it is common across the state for judges and attorneys to be related to each other.
“The idea that a judge should recuse because they have a close family member working in the office, (the system) would literally grind to a halt,” he said. “It’s just that’s not how this thing is intended to work.”
Noting the “tremendous” public interest in the Smollett case, however, the judge said he decided to turn the issue over to a different judge to avoid even the appearance of a conflict.
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“I am not unmindful that there are people in the public who believe that my being on this case somehow taints the proceedings,” he said. “I am ever mindful, as former Supreme Court Justice Antonin Scalia opined in a dissent once, that the appearance of justice is often as important as justice itself.”
O’Brien left the Leighton Criminal Court Building without comment, so it was unclear whether Martin’s decision to appoint Toomin was satisfactory to her.
However, before raising the issue about Martin’s son, O’Brien had proposed picking a judge from outside Cook County to decide whether a special prosecutor should be appointed. She argued that any Cook County judge would have a conflict of interest if Foxx was called as a witness.
Martin’s maneuver to not formally recuse himself allowed him to choose which judge would make the decision on the special prosecutor. He would not have been able to do that if he had simply recused himself.
Toomin, 81, has been on the bench for nearly 40 years, much of it at Leighton, the county’s main criminal courthouse. Since 2010 he has been the presiding judge of the Juvenile Justice Division, the courthouse on Chicago’s Near West Side that deals with minors charged with crimes.
Earlier in his career, Toomin sat for a couple of years on the Illinois Appellate Court in Chicago at about the same time as O’Brien. That court has six divisions in Chicago, and it does not appear that O’Brien worked in the same division as Toomin.
Even if they had been on the same appellate panel deciding on a court case, said Steven Lubet, a professor at Northwestern University’s Pritzker School of Law, it wouldn’t pose a conflict of interest.
Judges come to decisions independently of each other, said Lubet, who has written extensively on judicial ethics.
“Certainly there’s no reason to think that a judge on the court would be biased in favor of a former colleague,” he said.
Lubet praised as “prudent” Martin’s decision to step aside without formally recusing himself.
“Pragmatically, there’s no difference — he’s not going to be hearing the case,” Lubet said. “The difference is he was acting out of super-abundant caution rather than legal requirement, and to judges and lawyers, that makes a difference, even though the outcome is the same.”
Toomin has previously been involved in two high-profile criminal cases in which requests for special prosecutors had been sought.
In 2012 he appointed attorney Dan K. Webb as special prosecutor to investigate whether clout affected the 2004 inquiry into David Koschman’s death after a drunken confrontation with a nephew of then-Mayor Richard M. Daley. Richard “R.J.” Vanecko eventually pleaded guilty to involuntary manslaughter and was sentenced to 60 days in jail, 60 days of home confinement and 2 1/2 years of probation.
A dozen years earlier, Toomin declined to assign a special prosecutor to investigate alleged police misconduct in the investigation of 11-year-old Ryan Harris’ murder.
In court last week, Martin said 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 does not have a conflict of interest simply because of a family relationship to a prosecutor or public defender.
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“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, was 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 sought the special prosecutor the week after Foxx faced fierce criticism after her office dismissed the charges against Smollett with little explanation less than a month after he was indicted.
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, 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 underway by Cook County Inspector General Patrick Blanchard. At Foxx’s request, Blanchard agreed last month to investigate the office’s handling of the Smollett case.
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.
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But after Chicago police investigated, Smollett was charged with 16 felony counts of disorderly conduct alleging he staged the attack.