Jussie Smollett update: Judge asked to recuse himself from petition to appoint special prosecutor in 'Empire' actor's case

ByWill Jones via WLS logo
Thursday, May 2, 2019
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A retired judge who filed a petition to appoint a special prosecutor to investigate Kim Foxx's handling of the Jussie Smollett case asked a judge to recuse himself from the case.

CHICAGO -- A retired judge who filed a petition to appoint a special prosecutor to investigate Cook County State's Attorney Kim Foxx's handling of the Jussie Smollett case asked a Cook County judge to recuse himself from the case at a hearing Thursday.

Retired Illinois Appellate Court Justice Sheila O'Brien argued Judge LeRoy Martin Jr. should recuse himself in the case because Kim Foxx can hire and fire his son, who works for the state's attorney's office. She is asking for a judge from outside the county to ensure this process is fair.

WATCH: Timeline of key moments in Jussie Smollett case

Judge Martin called it troubling that his family is being brought into this and at times got into heated exchanges with O'Brien, who at one point suggested to the judge that he should recuse himself and "take the higher ground."

The State is arguing that there's no evidence that the judge would be biased if Kim Foxx had to take the stand.

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Locke Bowman of Northewestern University Pritzker School of Law said O'Brein's request for recusal is puzzling.

"Assistant State's Attorneys appear for him in matters many times a day, every day of the week," Bowman said. "There's typically no suggestion that because of his son's involvement with the State's Attorney's Office that his judgment is impaired."

"Special prosecutors are appointed to investigate crimes and as far as I'm aware there is no evidence or reason to believe that State's Attorney Kim Foxx or anyone in her office engaged in any remotely criminal conduct," Bowman added.

Foxx was not in court Thursday. Neither was Smollett, who now lives in California.

The hearing Thursday was held on O'Brien's petition to appoint a special prosecutor to look into Foxx and her office's handling of the controversial Jussie Smollett case.

The Cook County state's attorney's office dropped all charges against the actor on the show "Empire" after police maintained he staged a homophobic and racist attack on himself back in January.

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

Foxx recused herself from the case for a potential conflict of interest, but critics remain suspicious that she may have used her influence to make sure the charges were dropped.

Judge Martin said he will take the suggestion to recuse himself under consideration. All parties will be back in court next Friday.

Meanwhile, Kim Foxx was not in court and neither was Smollett, who has moved out of Chicago to California.

The TV actor claimed he was the victim of a vicious hate crime in the Streeterville neighborhood on January 29. He said two men physically attacked him while yelling racist and homophobic slurs, threw a chemical liquid on him and looped a rope around his neck.

Two days after the alleged attack, Chicago police released surveillance images of two people they said they considered persons of interest in the attack.

But the investigation turned on Smollett. He was accused of allegedly orchestrating the attack with the Osundairo brothers, who he knew. One brother was an extra on "Empire" and the other was Smollett's personal trainer.

Prosecutors said Smollett paid the brothers to pull off the staged attack.

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 is currently in the FBI crime lab for analysis, sources said, and experts believe Smollett could face federal charges for allegedly sending the letter.

All charges against Smollett were dropped in late February in exchange for community service and forfeiture of his $10,000 bond payment.

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.

Previous coverage:

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

Jussie Smollett News: Osundairo brothers file defamation lawsuit against 'Empire' actor's attorneys

Kim Foxx receives death threats after Jussie Smollett charges dropped

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

Jussie Smollett update: City sues 'Empire' actor for cost of investigating alleged staged attack

Jussie Smollett attorney responds to Chicago's civil suit threat

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

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

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

Jussie Smollett update: Thousands referred for alternative prosecution by Cook County prosecutors haven't completed process

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

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

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

Jussie Smollett update: Charges against 'Empire' actor dropped; 'not an exoneration,' prosecutor says

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

Related

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

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

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

        Jussie Smollett update: Thousands referred for alternative prosecution by Cook County prosecutors haven't completed process

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

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

              Mayor Emanuel on Jussie Smollett charges being dropped: 'This is a whitewash of justice'

                Jussie Smollett update: Charges against 'Empire' actor dropped; 'not an exoneration,' prosecutor says

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

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

                      Jussie Smollett pleads not guilty to disorderly conduct charges in arraignment Thursday

                        Osundairo brother at center of Jussie Smollett case competes in Chicago boxing match

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

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

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

                                Jussie Smollett update: 'Empire' actor indicted on 16 felony counts by grand jury

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

                                    Jussie Smollett's check to brothers written before 'Empire' actor accused of staging attack obtained by ABC News

                                      Jussie Smollett's character to be removed from 'Empire', producers say; actor charged with felony out on bond

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

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

                                            Smollett charged: 'Empire' actor out on bond, staged attack due to salary dissatisfaction: police

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

                                                Jussie Smollett attack: Cook County State's Attorney Kim Foxx recuses herself from investigation

                                                  Jussie Smollett attack: Brothers tell police that actor staged attack after threatening letter did not get enough attention

                                                    Civil rights activist calls for arrest of Jussie Smollett, believes he lied about alleged attack

                                                      Jussie Smollett attack: Brothers tell police that Jussie Smollett paid them to stage attack, official says; new evidence 'shifted the trajectory' of investigation after brothers cooperate, police say

                                                        Sources: Police investigating whether Jussie Smollett staged attack with help of others, allegedly being written off 'Empire'

                                                          Jussie Smollett breaks silence; 'Empire' actor addresses Chicago attack for 1st time

                                                            Jussie Smollett attack: Family releases statement, pictures of possible persons of interest released

                                                              Smollett attack: Surveillance video shows potential persons of interest, Chicago police say

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