Jussie Smollett Fights Appointment of Special Prosecutor

Last month, Judge Michael P. Toomin of Cook County ordered that a special prosecutor be appointed to examine whether local prosecutors properly handled Smollett’s case, and to reopen the case “if reasonable grounds exist.”

In court documents filed Friday, Smollett’s lawyers wrote that Toomin’s order should be scrapped and that a new judge should consider whether a special prosecutor should be appointed, arguing that Toomin was biased against Smollett.

If a judge asks for a special prosecutor again, the court filing said, that investigator should not have the power to prosecute Smollett, whose felony disorderly conduct charges were dropped by the Cook County State’s Attorney’s Office in March.

Toomin’s decision to appoint a special prosecutor was based on his conclusion that State’s Attorney Kim Foxx, who should have been in charge of prosecuting Smollett, failed to properly recuse herself from the case.

Foxx appointed her deputy to handle the case in February because she had had contact with representatives of Smollett when the police considered him to be a victim rather than a suspect. Foxx denied having a conflict of interest, but said she wanted to avoid the appearance of one.

In a sharply critical ruling, Toomin wrote that if Foxx wanted to formally recuse herself, she should have asked for a special prosecutor rather than keep the case inside her office.

Smollett’s lawyers argued that Toomin’s order unfairly assumed Smollett’s guilt and improperly used “inaccurate” media accounts in doing so.

“This case has been a travesty of justice and an unprecedented deprivation of Mr. Smollett’s constitutional rights, including the presumption of innocence and right to a fair trial,” Smollett’s lawyers wrote in the court filing.

A representative from Toomin’s office said it had not yet heard about the court filings and could not immediately comment. Although he ordered almost a month ago that a special prosecutor be appointed, he has not yet named anyone to fill that role.

His ruling was a response to a petition from a retired judge, Sheila O’Brien, who has said that she wants to get the “whole truth” of what happened in the case.

O’Brien said in a statement Friday that Smollett’s filings were “short on substance but big on flash and delay.”

It has been more than five months since Smollett, an actor on the Fox television show “Empire” who is black and gay, reported to police that two men had attacked him near his apartment in downtown Chicago. Smollett said that they shouted racist and homophobic epithets at him, poured bleach on him and placed a noose around his neck. Two acquaintances of Smollett’s, Abimbola Osundairo and Olabinjo Osundairo, later told police that Smollett paid them $3,500 to orchestrate the attack.

The Police Department said it had used security camera footage, text message communications and GPS location data to establish that the attack was a hoax. Smollett maintains his innocence, and his lawyers say that any contact he had with the brothers had to do with a fitness regimen they were putting him through.

The State’s Attorney’s Office dropped the charges after Smollett agreed to do some community service and to forfeit the $10,000 bond paid for his release from jail. The decision prompted outrage from the police superintendent and Rahm Emanuel, the mayor at the time, who contended that the outcome was too lenient given the many hours of detective work expended on the case.

This article originally appeared in The New York Times.