‘Empire’ actor could still be charged, as could investigators if they engaged in wrongdoing…
Judge Michael Toomin ruled that State’s Attorney Kim Foxx had the right to withdraw from the prosecution but could not legally appoint her top deputy to handle the case in her place.
The special prosecutor could end up charging Smollett, Toomin said, and if the investigation uncovers suspicion of wrongdoing by others, additional charges could be brought.
Toomin made the decision even though the county’s inspector general’s office is already investigating the decision by State’s Attorney Kim Foxx’s office to look into the controversy. Foxx herself, however, agreed to that probe.
Former state appellate Judge Sheila O’Brien has spearheaded the effort for a special prosecutor, arguing that State’s Attorney Kim Foxx’s actions created “a perception that justice was not served here, that Mr. Smollett received special treatment.”
County prosecutors oppose the move, saying a special prosecutor would duplicate the efforts of the county inspector general’s office.
Foxx’s office dropped all charges against Smollett at an unannounced court hearing in late March, less than three weeks after he was charged with staging an attack on himself.
Smollett also faces a lawsuit from the city of Chicago seeking to recoup the cost of police overtime for investigating the matter. His attorneys have been sued for defamation by the two brothers who claim Smollett paid them to help stage the attack. And he will not return to his role on the Fox series “Empire.”
In her petition, O’Brien highlighted how Foxx’s office said she 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 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. A spokeswoman for Foxx’s office said at the time that a Smollett relative was concerned about leaks from Chicago police to the news media.
Further communications turned over last month include texts from Foxx saying she was advised to recuse herself only because of false rumors she was related to Smollett.
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 Smollett was charged with 16 felony counts of disorderly conduct after Chicago police determined that he had agreed to pay the two brothers he knew to stage the attack.
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