Jussie Smollett Case to Be Investigated by Special Prosecutor

By Julia Jacobs and Robert Chiarito

The new prosecutor will review why the charges of faking a hate crime were dropped against the actor, and will be able to reopen the case if necessary.

ImageJussie Smollett leaving court on March 26, after charges that he staged a hate crime attack were dropped. On Friday a judge said a special prosecutor would review the handling of the case.
Jussie Smollett leaving court on March 26, after charges that he staged a hate crime attack were dropped. On Friday a judge said a special prosecutor would review the handling of the case.CreditCreditPaul Beaty/Associated Press

By Robert Chiarito and Julia Jacobs

CHICAGO — A judge on Friday ordered that a special prosecutor be appointed to independently investigate charges that the actor Jussie Smollett staged a racist hate crime against himself, as well as the prosecutors’ abrupt decision in March to drop the felony counts against him.

The judge’s order concerned the decision by Kim Foxx, the Cook County state’s attorney, to separate herself from the investigation and appoint her deputy, Joseph Magats, as “acting state’s attorney” to oversee the case. In a sharply critical ruling, Judge Michael P. Toomin of the Circuit Court of Cook County wrote that the decision raised “problematic concerns” because the proper procedure should have involved Ms. Foxx asking the court to appoint a special prosecutor.

Instead, Judge Toomin wrote, Ms. Foxx’s breach of protocol resulted in a “fictitious office” with no “legal existence” having control over the Smollett case.

[A timeline of the Jussie Smollett case.]

“There was and is no legally cognizable office of acting state’s attorney known to our statutes or to the common law,” the judge wrote. “Its existence was only in the eye or imagination of its creator, Kim Foxx.”

Ms. Foxx said in a statement on Friday that she disagreed with the judge’s conclusion that a special prosecutor was required. She said that she had followed the advice of her chief ethics officer, April Perry, when deciding to recuse herself.

That prompted a rebuke from Ms. Perry, who left the office soon after the charges were dropped. Ms. Perry said in a statement that in February, she had advised that Mr. Magats ask a court to appoint a special prosecutor, but that Mr. Magats responded that Ms. Foxx had decided against it.

“Ultimately, the state’s attorney has a tremendous amount of discretion on a wide range of issues, and we must rely upon the state’s attorney to exercise good judgment in the public’s interest,” Ms. Perry said.

Mr. Smollett, who turned 37 on Friday, had been accused of paying two acquaintances to stage an attack against himself in which they shouted racist and homophobic slurs and placed a noose around his neck. In February, Ms. Foxx removed herself from the case, saying publicly that it was because she had earlier contact with representatives of Mr. Smollett. Ms. Foxx appointed Mr. Magats, to oversee the case.

On March 26, the office suddenly dropped all 16 felony counts against Mr. Smollett, saying that he had agreed to forfeit the $10,000 bond paid for his release and that he was not a threat to public safety. The move prompted angry reactions from Chicago’s mayor at the time, Rahm Emanuel, and Eddie Johnson, the police superintendent.

Judge Toomin wrote in his decision that the appointment of a special prosecutor was meant to “restore the public confidence in the integrity of our criminal justice system.”

The decision does not mean that Mr. Smollett will face charges again, but Judge Toomin gave the special prosecutor the power to reopen the case “if reasonable grounds exist,” and to bring charges against anyone else believed to have committed a crime in the course of the case.

The ruling came as a result of a petition from a retired appellate judge in Illinois, Sheila O’Brien, who asked that a special prosecutor be appointed.

Ms. Foxx had opposed the appointment on several grounds, among them that another investigation would simply duplicate the work of the Cook County inspector general, whom she had asked to conduct an inquiry into her handling of the matter. She also said a new prosecutor was not needed because she had no conflict of interest in the case and that Ms. O’Brien had no power, as a civilian with no role in the case, to make her request.

ImageSheila O’Brien, a retired judge, walking out of a Chicago courthouse last month after a hearing on her request to appoint a special prosecutor. On Friday, a judge agreed.
Sheila O’Brien, a retired judge, walking out of a Chicago courthouse last month after a hearing on her request to appoint a special prosecutor. On Friday, a judge agreed.CreditAshlee Rezin/Chicago Sun-Times, via Associated Press

Judge Toomin agreed that there was no proof that Ms. Foxx had a conflict of interest, but he rejected her other arguments. In a statement, Ms. Foxx’s office said that Ms. Perry’s advice “was not correct” because without a conflict of interest, Ms. Foxx did not believe she needed to ask the court for a special prosecutor.

Outside the courtroom, Ms. O’Brien celebrated the ruling, saying that she anticipated getting the “whole truth” of what happened in the case.

“I have no interest in the outcome of this particular case,” she said. “My interest was in the process, that the process fulfill the law. It did not fulfill the law at the time and now the process is back on track.”

Gloria Schmidt, a lawyer for Abimbola and Olabinjo Osundairo, the brothers who say Mr. Smollett paid them to stage the hate crime, also praised Judge Toomin’s ruling outside the courtroom, saying that it made “perfect sense.”

“You can’t just create an office,” Ms. Schmidt said, “which is effectively what State’s Attorney Foxx did.”

A lawyer for Mr. Smollett, who has maintained that he did not stage the attack, did not immediately return requests for comment.

The acting role that Mr. Smollett is best known for, playing the son of a music mogul on the Fox drama “Empire,” has been in jeopardy since Mr. Smollett was arrested. Mr. Smollett was written out of the final two episodes of the most recent season, and it is unclear whether his character will appear in the show’s sixth and final season.

Cook County State’s Attorney Kim Foxx removed herself from the Smollett case in February. A judge said on Friday that she had mishandled her recusal.CreditAshlee Rezin/Chicago Sun-Times, via Associated Press

The sudden decision to drop charges against Mr. Smollett and Ms. Foxx’s ambiguous separation from the case has put the state’s attorney and her office under a microscope for several months. At first, the office said that Ms. Foxx was recusing herself from the matter. Later, officials said that they had used the word “recusal” colloquially and that Ms. Foxx was simply separating herself from it while her deputies took over.

Although the state’s attorney’s office said publicly that Ms. Foxx was off the case because of her previous contact with Mr. Smollett’s representatives, documents released last month through open-records requests showed Ms. Foxx texting a colleague a different explanation. Ms. Foxx wrote in a text that she was removing herself because there were rumors that Ms. Foxx was “related or closely connected to the Smolletts,” a rumor that she heard was “pervasive” in the Chicago Police Department.

“I thought it was dumb but acquiesced,” Ms. Foxx said of the suggestion that she recuse herself. Of the rumors, she wrote, “It’s actually just racist.” (Ms. Foxx is black, as is Mr. Smollett.)

Other released texts showed Ms. Foxx telling colleagues, even after she said she had taken herself off the case, that her office was treating Mr. Smollett too harshly. None of the released records show Ms. Foxx interceding to make her office drop the charges.

But some records showed how the office engaged in internal deliberations about the procedure Ms. Foxx was supposed to follow in recusing herself, and Judge Toomin’s order made reference to these discussions. On Feb. 20, the week after the office announced Ms. Foxx’s recusal, Alan J. Spellberg, the supervisor of the criminal appeals division at the state’s attorney’s office, offered advice on the matter.

In an email to Ms. Foxx’s deputies, Mr. Spellberg wrote that while Ms. Foxx had the “complete discretion” to recuse herself from any case, she could not simply direct someone — including her deputy, Mr. Magats — to take over for her. Ms. Perry said she was following Mr. Spellberg’s legal advice when she prepared a motion asking for a special prosecutor, which she said Ms. Foxx eventually decided against filing.

The judge did not name the special prosecutor in his ruling. One option would be to appoint a state’s attorney from a different county.

A version of this article appears in print on , on Page C1 of the New York edition with the headline: Judge Orders Jussie Smollett Investigation To Be Renewed. Order Reprints | Today’s Paper | Subscribe