Jussie Smollett: Judge orders special prosecutor to review case; 'Empire' actor could be re-charged

ByJessica D'Onofrio, Stacey Baca, Chuck Goudie WABC logo
Friday, June 21, 2019
Jussie Smollett case: Judge orders special prosecutor to review Cook County State's Attorney Kim Foxx's handling of 'Empire' actor's case
EMBED <>More Videos

A Cook County judge ruled Friday to appoint a special prosecutor to review State's Attorney Kim Foxx's handling of the Jussie Smollett case.

CHICAGO -- A Cook County judge ruled Friday to appoint a special prosecutor to review State's Attorney Kim Foxx's handling of the Jussie Smollett case.

In his ruling Friday, the judge questioned Foxx's decision to appoint a deputy to oversee the Smollett case, saying that she did not have the authority to do so. The decision means that a special prosecutor could now decide to re-charge Jussie Smollett all over again, putting the actor back at square one.

The judge specifically mentioned the ABC7 I-Team for their report on a memo from Alan Spellberg, supervisor of the Criminal Appeals Division, sent to office brass. In the memo, Spellberg wrote, "My conclusion from all of these authorities is that while the State's Attorney has the complete discretion to recuse herself from any matter, she cannot simply direct someone (even the First Assistant) to act in her stead."

Smollett was accused of staging an attack on himself in Chicago's Streeterville neighborhood in January. Police and prosecutors said Smollett orchestrated the attack with the help of two brothers. One brother was an extra on "Empire" and the other was Smollett's personal trainer.

All charges against Smollett were dropped in late February in exchange for community service and forfeiture of his $10,000 bond payment. That decision is already under a separate review by the county's inspector general.

Retired Judge Sheila O'Brien, who filed the petition requesting a special prosecutor to review State's Attorney Kim Foxx's handling of the Jussie Smollett case, speaks after the ju

Retired State Appellate Judge Sheila O'Brien filed the petition for the special prosecutor and said this was a good day for justice.

"The most important thing, as the judge indicated, is that the confidence in our judicial system will be restored to all of us, that this case will be handled by someone who does not have a conflict," O'Brien said outside of court Friday.

As a concerned citizen, she petitioned the courts to appoint a special prosecutor to investigate Kim Foxx and her office's handling of the high-profile Smollett case. The petition cited Foxx's questionable recusal of herself from the investigation.

Judge Michael Toomin ultimately decided that Foxx had no authority to appoint an acting special prosecutor or successor to oversee her place on the case, writing that people realized it was a "recusal that really wasn't" and that Foxx's actions were an "exercise in sophistry."

The judge said in court that there was no master on the bridge to guide the ship as it chartered through unchartered waters, no duly elected state's attorney when Smollett was arrested, arraigned, or indicted, or when the charges were dropped, so a special prosecutor could re-prosecute.

"Now the process is back on track: A new lawyer, a new prosecutor will be appointed; a new person will look at it. And we hope that person will do the right thing," O'Brien said.

Kim Foxx responded in a statement, saying in part, "I respectfully disagree with the court's conclusion that, in the absence of any conflict, the appointment of a special prosecutor is required."

Foxx can appeal the decision.

Gloria Schmidt, the attorney for the two brothers who allegedly help Smollett stage the attack back in January, was in court and applauded the judge's decision to appoint a special prosecutor to look into this case again.

"His ruling today makes perfect sense," Schmidt said. "You can't just create an office, and that's effectively what State's Attorney Foxx did."

Smollett's legal team has not responded to a request for comment.

Chicago Police Department spokesman Anthony Guglielmi said in a statement, "We stand firmly behind the work of detectives in investigating the fabricated incident reported by Jussie Smollett & #ChicagoPolice will fully cooperate with the court appointed special prosecutor."

Last month, thousands of pages of the Smollett case records were released by Foxx's office after an open records request. The records include copies of search warrants, police investigative notes and official charges as well as communications between Smollett's attorneys and prosecutors prior to the charges being dropped.

Smollett had also reported a threatening letter sent to him on the "Empire" set containing a white powder, a week before the alleged attack. The letter was sent to an FBI crime lab for analysis, sources said, and experts believe Smollett could face federal charges for allegedly sending the letter.

Smollett has maintained his innocence. The City of Chicago is suing the actor for the costs of the investigation and damage to the city's reputation.

The Osundairo brothers have since filed a lawsuit in their defense claiming Smollett hired them to stage an attack on the actor. The Osundairo brothers are suing Smollett's legal team for defamation.

Previous coverage:

RELATED: 911 calls released of Jussie Smollett reporting alleged attack

RELATED: Lee Daniels says Jussie Smollett not returning for final season of 'Empire'

RELATED: Cook Co. State's Attorney's Office releases documents in Jussie Smollett case

RELATED: Chicago police release 400 pages of Jussie Smollett case files

RELATED: Judge rules to unseal records in Jussie Smollett case

RELATED: 'Empire' will go 1 more season, Smollett's future is unclear

RELATED: Judge asked to recuse himself from petition to appoint special prosecutor in Jussie Smollett case

RELATED: Jussie Smollett's contract extended, no plans for character to return to 'Empire'

RELATED: Osundairo brothers file defamation lawsuit against Jussie Smollett's attorneys

RELATED: Kim Foxx receives death threats after Jussie Smollett charges dropped

RELATED: Kim Foxx's chief spokesperson resigns from State's Attorney's Office

RELATED: 2 top staffers leaving Kim Foxx's State's Attorney's Office

RELATED: Jussie Smollett update: Kim Foxx's texts and emails raise more questions about recusal

Kim Foxx texts show she thought number of Jussie Smollett charges 'excessive'

Cook County State's Attorney Kim Foxx asks for review of how Jussie Smollett case was handled

RELATED: Cook County State's Attorney Kim Foxx asks for review of how Jussie Smollett case was handled

RELATED: City sues Jussie Smollett for cost of investigating alleged staged attack

RELATED: Cook County State's Attorney Kim Foxx lets Derrion Albert killer off the hook

RELATED: Kim Foxx says 'this is personal' about calls for her to resign

RELATED: Jussie Smollett attorney responds to Chicago's civil suit threat

RELATED: Taraji P. Henson weighs in on 'Empire' co-star Jussie Smollett's case

RELATED: Chicago to file civil suit against 'Empire' actor for not paying $130K cost of police investigation

RELATED: In wake of Jussie Smollett, suburban police chiefs take no confidence stance against State's Attorney Kim Foxx

RELATED: Jussie Smollett case leads to protests for, against Cook County State's Attorney Kim Foxx

RELATED: Chris Rock rips an absent Jussie Smollett at the NAACP Image Awards

RELATED: Thousands referred for alternative prosecution by Cook County prosecutors haven't completed process

RELATED: Jussie Smollett's surprise deal raises new questions

RELATED: City of Chicago asks Jussie Smollett to pay for $130,000 cost of investigation

RELATED: FBI reviewing circumstances of Jussie Smollett's charges being dropped, sources confirm

RELATED: What's inside the CPD Jussie Smollett investigative file?

RELATED: Mayor Emanuel calls decision to drop charges against Smollett 'whitewash of justice'

RELATED: Charges dropped against 'Empire' actor Jussie Smollett

RELATED: Osundairo brother at center of Jussie Smollett case compete in Chicago boxing match

RELATED: Jussie Smollett update: 'Pain and anger' around 'Empire' in recent weeks, Lee Daniels says

RELATED: FOP accuses Cook County State's Attorney Kim Foxx of interfering in Jussie Smollett investigation

RELATED: Jussie Smollett pleads not guilty to disorderly conduct charges

RELATED: Jussie Smollett update: Texts shed light on why State's Attorney Kim Foxx recused herself

RELATED: Jussie Smollett appears in court for hearing; Cameras allowed for Thursday hearing

RELATED: Jussie Smollett update: Brothers 'taken advantage of' by Smollett, attorney says

RELATED: Jussie Smollett indicted on 16 felony counts by grand jury

RELATED: Brothers reportedly involved in Jussie Smollett alleged hoax release statement expressing 'regret'

RELATED: Jussie Smollett's check to brothers obtained by ABC News

RELATED: Jussie Smollett's character to be removed from 'Empire', producers say

RELATED: What's next for Jussie Smollett? Possible big police bill

RELATED: Jussie Smollett alleged hoax may cast doubt on real hate crimes, advocates fear

RELATED: Jussie Smollett out on bond after being accused of staging attack

RELATED: Jussie Smollett charged with disorderly conduct for filing false police report, prosecutors say

RELATED: Cook Co. State's Attorney Kim Foxx recuses herself from Jussie Smollett investigation

RELATED: Brothers told police Smollett was upset threatening letter didn't get enough attention, staged attack

RELATED: Activist calls for Smollett's arrest, believes actor lied about attack

RELATED: Brothers tell police that Jussie Smollett paid them to stage attack, official says

RELATED: Sources: Police investigating whether Smollett staged attack with help of others

RELATED: Timeline of key moments in alleged attack on Jussie Smollett

RELATED: Jussie Smollett breaks silence on Chicago attack

RELATED: 'Empire' actor's family releases statement on attack, pictures of possible persons of interest released

RELATED: Photos show potential persons of interest in 'Empire' actor attack, police say

RELATED: 'Empire' actor Jussie Smollett attacked in Chicago in possible hate crime, police say