Sandy MaloneChicago, IL – Former “Empire” star Jussie Smollett could find himself facing charges again after a Cook County judge on Friday ordered the appointment of a special prosecutor to investigate the dismissal of the charges against him.
Cook County Judge Michael Toomin said that Cook County State’s Attorney Kim Foxx had every right to recuse herself from Smollett’s trial, but that she did not have the authority to appoint her No. 2 to the prosecution, the Chicago Tribune reported.
Toomin said that since the deputy state’s attorney had no authority in the case, there was actually no prosecutor at the helm as the case wound its way through the court system.
“It is also a case that deviated from the statutory mandate requiring the appointment of a special prosecutor in cases where the State’s Attorney is recused,” he wrote in the 21-page opinion. “Here, the ship of the State ventured from its protected harbor without the guiding hand of its captain.”
“There was no master on the bridge to guide the ship as it floundered through uncharted waters, and it ultimately lost its bearings,” the judge continued. “… The unprecedented irregularities identified in this case warrants the appointment of independent counsel to restore the public’s confidence in the integrity of our criminal justice system.”
He scolded Foxx for the manner in which her office handed the case, the New York Post reported.
“Jussie Smollett’s case is truly unique among the countless prosecutions heard in this building. A case that purported to have been brought and supervised by a prosecutor serving in the stead of our duly elected State’s Attorney, who in fact was appointed a fictitious office having no legal existence,” Toomin wrote.
The judge also called Foxx out for ignoring state laws and procedures, the New York Post reported.
Toomin’s ruling harbors bad news for the former “Empire” actor because a special prosecutor could decide to bring the same, different, or more charges against him, the Chicago Tribune reported.
Smollett was arrested on Feb. 21 for staging a hoax attack on himself in Chicago.
Chicago police have said they believe Smollett lied when he told police he was jumped by two masked men as he was walking home from a Subway restaurant in his Streeterville neighborhood in the early hours of Jan. 29.
He said the men beat him, and hurled racist and homophobic slurs at him.
Smollett told police that the men threw an unknown substance on him and put a noose around his neck before they ran off.
His manager told police that he was on the phone with his client at the time of the attack and heard Smollett’s attackers say “This is MAGA country” while they were assaulting the actor, NBC News reported.
Chicago Police Superintendent Eddie Johnson explained at a press conference the day of Smollett’s arrest that that police considered the actor a victim up until Ola and Abel Osundairo returned from Nigeria to Chicago and were taken into police custody, and then the investigation “spun in a totally different direction.”
“We gave him the benefit of the doubt up until that 47th hour. But when we discovered the actual motive, quite frankly, it pissed everybody off,” he explained.
He said the brothers told police that Smollett paid them $3,500 to stage the attack, with another $500 after they returned from a planned trip to Nigeria.
“We have the check that he used to pay them,” Superintendent Johnson said.
The Cook County State’s Attorney’s Office announced on March 8 that Smollett had been indicted by a grand jury on 16 felony counts of disorderly conduct.
But then on March 26, the State’s Attorney’s Office unceremoniously announced all charges against the “Empire” actor had been dropped.
The city of Chicago has since sued Smollett for the cost of the overtime the police department incurred while investigating the hoax.
The appointment of a special prosecutor was a win for former State Appellate Judge Sheila O’Brien who led the effort to have one appointed.
“We’ll get the truth, the whole truth, under oath, and that’s what this is about,” O’Brien said to reporters in the lobby of the Leighton Criminal Court Building after she learned of the decision.
Foxx’s office had opposed the appointment of a special prosecutor and pointed out that the inspector general’s office was already investigating her handling of the Smollett case, the Chicago Tribune reported.
However, because Foxx had ordered that investigation herself, many questioned how independent of the state’s attorney’s office it really was.
Foxx released a statement after the decision was handed down that said she “respectfully” disagreed with Toomin’s ruling and that she had followed the advice of her former chief ethics officer, according to the New York Post.
“I respectfully disagree with the court’s conclusion that, in the absence of any conflict, the appointment of a special prosecutor is required,” the state’s attorney said.