‘It troubles me that we’re having this discussion about my family member because bringing one’s family into these kinds of circumstances is troubling…’
(Megan Crepeau, Chicago Tribune ) A hearing on a request for a special prosecutor in the Jussie Smollett case quickly switched its focus Thursday from the “Empire” actor to the judge on the bench.
The proceedings grew unexpectedly heated when Sheila O’Brien, a retired appellate judge pushing for the special prosecutor, filed last-minute paperwork suggesting that Cook County Judge LeRoy Martin Jr. recuse himself from deciding the issue because his son has worked as a county prosecutor since last year.
O’Brien contended that would put Martin in a precarious position if State’s Attorney Kim Foxx was called as a witness in the proceedings.
“You’re going to decide whether the state’s attorney, your son’s boss, is telling the truth,” O’Brien said. “Your son’s career is tied to the potential witness’ career.”
Martin, who at times appeared to barely conceal his frustration with O’Brien’s argument despite keeping a smile on his face, postponed the hearing until next week to give him time to consider the request for him to step aside. He made it clear, though, he thought O’Brien’s request had taken a personal turn he didn’t appreciate.
“Never before has this issue come up regarding this, considering the fact that I sit in judgment of cases every day involving the state’s attorney’s office,” he said. “It troubles me that we’re having this discussion about my family member because bringing one’s family into these kinds of circumstances is troubling.”
O’Brien said she only realized that the younger Martin’s connection to the prosecutors’ office would become an issue Wednesday night after news media reports about his employment.
Martin, the presiding judge of the Circuit Court’s Criminal Division, also appeared frustrated that O’Brien expected him to decide on the matter at the last minute. That led to a testy exchange between the two.
“You stepped up and 10 minutes ago you file-stamped this and dropped this on my desk, and (you) tell me that I need to decide this issue that you’ve just made an issue a few moments ago,” he said. “Like you, I wasn’t aware of_”
“You weren’t aware your son was a state’s attorney?” O’Brien interrupted.
“Only my wife can complete my sentences,” Martin shot back to scattered applause from the courtroom gallery.
Prosecutors from Foxx’s office also slammed O’Brien’s request for Martin to step aside, noting that his son had nothing to do with the Smollett case—and doesn’t even practice at the Leighton Criminal Court Building, where Martin works. Martin’s son, LeRoy III, who has been with the state’s attorney’s office since April 2018, works as a prosecutor in the juvenile court.
Assistant State’s Attorney Mark Rotert argued that O’Brien’s bid to force Martin out was only misdirection because her petition for a special prosecutor is deeply flawed and should be tossed out.
Illinois statute “clearly slam-dunks her argument. She cannot win,” Rotert said. “Because she cannot win, she comes in and misdirects with other issues. … When we get to the heart of this matter ultimately, we will find there’s no there there.”
When prosecutors and Martin repeatedly raised the point that Martin regularly hears cases involving the state’s attorney’s office, O’Brien said that might signal a broader problem.
“Maybe there should be a hard look about whether people who have relatives in the state’s attorney’s office should be judges on these cases,” she said. “Maybe there’s an appearance of impropriety.”
Steven Lubet, a professor at Northwestern University’s Pritzker School of Law who has written extensively on judicial ethics, said Martin’s son is too far removed from the Smollett case for his connection to cause an ethical concern.
“Family relationships can require the disqualification of a judge, but typically it’s because the relative is actually involved in the case before the court,” he said. ” … This is just too remote to require disqualification.”
O’Brien filed the petition the week after Foxx’s office made the surprise decision to drop all charges against Smollett just weeks after indicting him on 16 counts of disorderly conduct alleging he staged an attack on himself.
Smollett, who is black 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 he was charged after Chicago police determined that Smollett had agreed to pay $3,500 to two brothers he knew to stage the attack.
Foxx has faced fierce criticism over her office’s abrupt dismissal of the charges, including calls for her resignation by the Chicago Fraternal Order of Police. The county inspector general’s office is investigating the matter at Foxx’s request.
In her petition, O’Brien highlighted how Foxx said she recused herself in the early stages of the investigation—only to claim recently that it was not a recusal “in the legal sense” that would have required the entire office to withdraw from the prosecution.
O’Brien alleged that Foxx’s actions created “a perception that justice was not served here, that Mr. Smollett received special treatment.”
County prosecutors and Smollett’s attorneys have said the petition is legally flawed and that the appointment of a special prosecutor is unnecessary because of the review already undertaken by the IG’s office.
(c)2019 Chicago Tribune. Distributed by Tribune Content Agency, LLC.