IT LOOKS LIKE COOK COUNTY JUDGES ARE TRYING TO PROTECT KIM FOXX

Former judge files new motions pushing for special prosecutor in Jussie Smollett case

By Megan Crepeau

Chicago Tribune
May 22, 2019

A former appellate judge pushing for a special prosecutor in the Jussie Smollett case on Tuesday filed a flurry of paperwork, including a bid to block Cook County State’s Attorney Kim Foxx from using any of her office’s attorneys from representing her in the legal fight.

“Tax supported attorneys are to do the business of the people — not protect the State’s Attorney in disobeying the law,” Sheila O’Brien argued in the likely long-shot effort.

O’Brien, who wants a special prosecutor to look into the abrupt dismissal of charges alleging Smollett staged an attack on himself, also renewed her call for the matter to be transferred to a judge outside Cook County.

She also sought permission to depose Foxx and high-profile attorney Tina Tchen, who connected Foxx with one of Smollett’s relatives in the early stages of the investigation. That communication was among the reasons Foxx said she withdrew herself from the matter before her office dismissed the charges against Smollett.

At a hearing last week, Judge Michael Toomin, appointed recently to make the decision on a special prosecutor, denied O’Brien’s previous attempt to get the case moved to a different judge and quashed her subpoenas to Foxx and her top deputy.

O'Brien sought the special prosecutor after Foxx faced fierce criticism over her office's dismissal of all charges against Smollett with little explanation less than a month after he was indicted on charges he staged an attack on himself.

The matter is slated for a hearing next week before Toomin, who got the case from Criminal Division Presiding Judge LeRoy Martin Jr. after O’Brien alleged it would be improper for Martin to hear the case since his son is a Cook County prosecutor.

O’Brien filed three motions Tuesday attempting to get the case before a different judge altogether. One filing points out that Toomin denied her effort to get the case before a non-Cook County judge, but years ago transferred a different high-profile case — the matter of David Koschman’s death after a drunken confrontation with a nephew of then-Mayor Richard M. Daley — to a judge outside the county.

O’Brien also formally requested Foxx and her top deputy, Joseph Magats, appear in court next week and produce their internal files.

She also wants next week’s hearing delayed until later this summer, saying she needs time to gather evidence before a full hearing on the merits of her petition.

In her petition, O'Brien highlighted how Foxx recused herself early in the investigation after communicating with a Smollett relative — only to later claim that it was not a recusal "in the legal sense" that would have required the entire office to withdraw from the prosecution.

Communications later released to the Tribune showed Foxx had asked police Superintendent Eddie Johnson to turn over the investigation to the FBI after she was approached by Tchen, a former chief of staff to first lady Michelle Obama.

O'Brien alleged that Foxx's actions created "a perception that justice was not served here, that Mr. Smollett received special treatment."

Both county prosecutors and Smollett's attorneys have said the petition is legally flawed and that a special prosecutor would duplicate efforts already undertaken by Cook County Inspector General Patrick Blanchard. At Foxx's request, Blanchard agreed last month to investigate the office's handling of the short-lived Smollett prosecution.

Smollett, who is black and openly gay, found himself at the center of an international media firestorm after he reported in late January being the victim of an attack by two people shouting racist and homophobic slurs.

But after Chicago police investigated, Smollett was charged with 16 felony counts of disorderly conduct, charges that were ultimately dismissed after Smollett performed community service and agreed to forfeit his bond money to the city.