Case NOT closed!  Jussie Smollett could end up in prison after all.


It’s the kind of news that will wipe the smug grin right off the face of a b-list actor.

On Friday, a judge ordered that a special prosecutor be tapped to independently investigate charges that actor Jussie Smollett faked a racist hate crime against himself. 

That prosecutor will also be asked with investigating the prosecutors’ abrupt decision in March to drop the felony counts against him.

It was a sharp ruling from the judge concerning the decision by Kim Foxx, the Cook County state’s attorney, to “separate herself” from the investigation and appoint her deputy, Joseph Magats, to oversee the case.

Judge Michael P. Toomin said the decision raised “problematic concerns” and argues the proper procedure should have involved Ms. Foxx asking the court to appoint a special prosecutor.

That’s not what she did and so Judge Toomin wrote that Foxx’s breach of protocol resulted in a “fictitious office” with no “legal existence” having control over the 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.”

Foxx put out her own statement Friday saying she disagreed with the judge’s conclusion that a special prosecutor was required.

Case NOT closed!  Jussie Smollett could end up in prison after all.
Kim Foxx is the State’s Attorney for Cook County. (Facebook)


She says she was just doing what her chief ethics officer, April Perry, told her to do.

Not true, said Perry, who issued her own rebuke.  Perry left the office soon after the charges were dropped, and said in a statement that this wasn’t the case at all.

She claims that in February she advised that Magats to ask a court to appoint a special prosecutor. She says 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.

Smollett, who turned 37 on Friday, now faces big troubles.  He had been accused of paying to friends to stage an attack against him, where they shouted racist and homophobic slurs and placed a noose around his neck, pretending to be Trump supporters.

On March 26, after Smollett forfeited the $10,000 bond paid for his release, the office suddenly dropped all 16 felony counts against him, saying he wasn’t a threat to public safety.

Jussie Smollet booking photo. (Chicago Police Department)


There was an outpouring of anger from Chicago’s mayor at the time, Rahm Emanuel, and Eddie Johnson, the police superintendent.

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

Now while it doesn’t specifically mean that Smollett will face charges again, Judge Toomin gave the special prosecutor carte blanche to reopen the case “if reasonable grounds exist”. That means they can also bring charges against anyone else believed to have committed a crime in the course of the case.

It all comes after a petition from a retired appellate judge in Illinois, Sheila O’Brien, for a special prosecutor to be appointed.


Case NOT closed!  Jussie Smollett could end up in prison after all.


Foxx has been adamantly against it, saying another investigation would simply duplicate the work of the Cook County inspector general. 

On top of that, she said there was no conflict of interest in the case and that O’Brien had no power, as a civilian with no role in the case, to make the request that she did.

While Judge Toomin agreed there wasn’t evidence of a conflict of interest, he rejected her other arguments.

Foxx’s office fired back, saying Perry’s advice “was not correct” because without a conflict of interest, there was no need for a special prosecutor.

O’Brien celebrated outside of court, saying she was looking forward to 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 is a lawyer for Abimbola and Olabinjo Osundairo.  They are the brothers who say Smollett paid them to stage the attack.  Schmidt also praised Judge Toomin’s ruling, saying it made “perfect sense.”

Abimbola “Abel” and Olabinjo “Ola” Osundairo told police they were paid by Smollett to help stage the attack. (Image via Fox News)


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

Smollett’s lawyer had no comment.

Ever since the debacle, Smollett’s acting role in the Fox drama “Empire” has been in question.

Smollett was written out of the final two episodes of the most recent season, and there’s no word on whether he’ll come back in the show’s sixth and final season.

Foxx’s office has been under a microscope for months now.

At first, she said she was recusing herself… but later, officials said the word “recusal” wasn’t accurate and that Foxx was simply separating herself from it while her deputies took over.

Kim Foxx

The state’s attorney’s office publicly said Foxx was off the case because of her previous contact with Smollett’s representatives.

But last month, documents obtained by the media through open-records requests showed Foxx texting a colleague a different explanation.

She said she was removing herself because there were rumors that Ms. Foxx was “related or closely connected to the Smolletts”.

She said it was a rumor that “pervasive” in the Chicago Police Department.

“I thought it was dumb but acquiesced,” Ms. Foxx said of the suggestion that she recuse herself.

As for the rumors? She wrote, “It’s actually just racist.”

In other texts that she sent colleagues after she’d allegedly taken herself off the case, she said her office was treating Smollett too harshly.

In his ruling, the judge didn’t actually name a special prosecutor.  One possibility is that one will be appointed from a different county.


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