Jussie Smollett: Special prosecutor appointed to review hoax attack charges

Special prosecutor to review decision to dismiss charges against Empire actor

A special prosecutor will investigate the handling of the case revolving around Empire actor Jussie Smollett.

A judge decided to appoint a special prosecutor on Friday to examine the decision by Cook County prosecutors to dismiss all charges against Smollett, who was accused of allegedly lying to the police by claiming he was the victim of a racist and homophobic attack in downtown Chicago in January.

Cook County Judge Michael Toomin suggested that the county's state's attorney, Kim Foxx, could have mishandled the Smollett case by appointing a top aide to oversee it after she recused herself.

Foxx had been in contact with a relative of the actor and had been approached by former First Lady Michelle Obama's one-time chief of staff on behalf of Smollett's family, and she explained at the time that she was recusing herself to avoid "even the perception of a conflict" of interest.

In his ruling, Toomin said he had no problem with Foxx's February recusal, but that it should have included a request for a special prosecutor to take over the case. He said she had no right to hand it off to someone from her office, which he said amounted to naming her own special prosecutor.

"State's attorneys are clearly not meant to have unbridled authority to appoint special prosecutors," he said. "She appointed (her top assistant) to an office, to an entity, that has no legal existence. There isn't an office of the 'acting state's attorney.' It existed only ... in the imagination of Ms. Foxx."

"The unprecedented irregularities identified in this case warrant the appointment of independent counsel to restore the public's confidence in the integrity of our criminal justice system," the judge said.

In a written statement, Foxx took issue with the ruling, and explained that she "followed the advice of counsel and my then Chief Ethics Officer" to recuse herself.

Foxx has been under fire for her handling the investigation, including from the Chicago Police Department and the city's former mayor. Her office charged Smollett with 16 counts of disorderly conduct after police concluded that Smollett had allegedly staged the early-morning 29 January attack on himself and paid two acquaintances to help him pull it off. But the office stunningly dropped all of the charges weeks later, prompting an outcry from police and leading a former state appellate judge, Sheila O'Brien, to call for a special prosecutor.

In filing a petition requesting a special prosecutor, O'Brien said it appeared to her and others that Smollett had "received special treatment" from Foxx's office.

Foxx has defended her handling of the case and said Smollett was treated no differently than thousands of other defendants in low-level cases whose charges have been similarly dropped since she took office. And Foxx, who has publicly wondered if her being black is related to the criticism she has received, said she would welcome an independent investigation. But her office opposed such a special prosecutor, explaining that the investigation would just duplicate the efforts of a county inspector general's office probe that is already underway.

Toomin is now required by law to ask the state's attorney general's office or the state appellate prosecutor to serve as special prosecutor. If they decline, he must make the same request to elected state's attorneys throughout Illinois.

If none of those prosecutors agree to take the case, the city can hire a private attorney to handle it.

Toomin's ruling adds yet another layer to an already complicated case. Weeks after the charges were dropped against Smollett, the city sued him in an attempt to recoup the tens of thousands of dollars the police department spent investigating the case. There was even a defamation lawsuit by the two brothers who allege that Smollett paid them to help him stage the attack on himself.

Fox Entertainment announced in April that Smollett would not appear in season six of Empire, which is its last instalment.

Additional reporting by agencies