Special Prosecutor to Be Appointed to Investigate Handling of Jussie Smollett Case, Could Reinstate Charges

Cook County judge rules State’s Attorney Kim Foxx had no authority to appoint her deputy to oversee the case

Last Updated: June 21, 2019 @ 10:17 AM

A Cook County judge on Friday ruled that a special prosecutor be appointed to look into State’s Attorney Kim Foxx’s handling of the Jussie Smollett investigation, according to local Chicago news reports.

Judge Michael Toomin ruled that Foxx, who recused herself from the investigation, had no authority to appoint First Assistant State’s Attorney Joseph Magats in her place, reports CBS 2 Chicago. Toomin argued that Foxx essentially appointed Magats to a “fictitious” office. The prosecutor would be allowed to bring forth new charges against Smollett if it is deemed there are “reasonable grounds” to do so, according to the report.

“What causes concerns is that she appointed him to an entity that had and has no legal existence. There is no office of acting state’s attorney,” Toomin said, according to the report. Toomin argued that this meant there was effectively no state’s attorney when Smollett was arrested, charged, indicted, arraigned, and when the charges were eventually dropped, meaning that all those decisions are invalid.

“I am pleased that the court agreed there was no conflict of interest here. Regarding recusal, I followed the advice and counsel of my then Chief Ethics Officer. In any event, I respectfully disagree with the court’s conclusion that, in the absence of any conflict, the appointment of a special prosecutor is required,” Foxx said in a statement. “As always, I remain committed to transparency, justice, and the public safety of the communities we serve.”

In March, the Cook County State’s Attorney’s Office dropped all charges against Smollett, who had been indicted on 16 felony counts of filing a false police report. He was accused of lying to police regarding a Jan. 29 incident, in which he said he was randomly attacked by two men shouting racial and homophobic slurs in his Chicago neighborhood.

The “Empire” star — who is not expected to return for the show’s final season next year — was originally charged with one felony count for filing a false police report in February. Smollett has continually denied all the charges against him.

Toomin said he will ask the Illinois Attorney General’s office and the state’s appellate prosecutor’s office to handle the case, according to the report. If not, then he will seek volunteers from other county’s state’s attorney’s offices. In May, a Chicago judge ordered that Smollett’s case file be unsealed, which made those records available to the public.