It's Not Over: Judge Approves Special Prosecutor For Jussie Smollett Case In Nautical Smackdown

A Chicago judge on Friday used a nautical analogy to approve a special prosecutor to review how Cook County State's Attorney Kim Foxx handled the Jussie Smollett case. 

The "Empire" actor, who faked a hate crime in order to boost his career and denigrate Trump supporters, avoided prosecution after Foxx's office dropped all criminal charges against him in a dramatic 11th hour announcement in March. The actor forfeited $10,000 in bail and performed 16 hours of community service at Rev. Jesse Jackson's "Rainbow/Push" headquarters over two days. 

Cook County Judge Michael P. Toobin wrote on Friday;

Jussie Smollett's case is truly unique among the countless prosecutions heard in this building. A case that purported to have been brought and supervised by a prosecutor serving in the stead of our duly elected State's attorney, who in fact was appointed to a fictitious office having no legal existence. It is also a case that deviated from the statutory mandate requiring the appointment of a special prosecutor in cases where the State's Attorney is recused. And finally, it is a case where based upon similar factual scenarios, resulting dispositions and judgments have been deemed void and held for naught. 

Here, the ship of the State ventured from its protected harbor without the guiding hand of its captain. There was no master on the bridge to guide the ship as it floundered through uncharted waters. And it ultimately lost its bearings. As with that ship, in the case at hand:

  • There was no duly elected State's Attorney when Jussie Smollett was arrested;
  • There was no State's Attorney when Smollett was initially charged; 
  • There was no State's Attorney when Smollett's case was presented to the grand jury, nor when he was indicted; 
  • There was no State's Attorney when Smollett was arraigned and entered his plea of not guilty; and
  • There was no State's Attorney in the courtroom when the proceedings were nolle prossed (dismissed) -Judge Michael P. Toobin

As such, Toobin said that "Adherence to the long-standing principles discussed herein mandates that a special prosecutor be appointed to conduct an independent investigation of the actions of any person or office involved in all aspects of the case," adding that "if reasonable grounds exist to further prosecute Smollett, in the interest of justice the special prosecutor may take such action as may be appropriate to effectuate that result."

Chicago PD spokesman Anthony Guglielmi tweeted in response to Friday's news that the department stands "firmly behind the work of detectives in investigating the fabricated incident reported by Jussie Smollett," adding that they will "fully cooperate with the court appointed special prosecutor."

Controversy erupted in March when texts and emails released by the Cook County State's Attorney's Office revealed that Michelle Obama's former Chief of Staff, Tina Tchen, attempted to have the case transferred to the FBI from the Chicago Police. 

"Spoke to the Superintendent Johnson," Foxx emailed Tchen on Feb. 1, in reference to Chicago Police Superintendent Eddie Johnson. "I convinced him to Reach out to FBI to ask that they take over the investigation." 

Foxx also texted with one of Smollett's relatives whose name was redacted from the text release, saying: "Spoke to the superintendent earlier, he made the ask ... Trying to figure out logistics. I’ll keep you posted." 

Foxx said she recused herself from the case after having conversations with one of Smollett’s relatives before he was charged with disorderly conduct for allegedly faking a hate crime against himself.

Foxx’s top deputy, First Assistant State’s Attorney Joseph Magats, took over the case, and prosecutors ended up dropping all charges a month after Smollett was arrested, after the “Empire” actor performed 16 hours of community service, and agreed to forfeit his $10,000 bail, but did not admit guilt.

Hundreds of emails and text messages later released by Foxx’s office showed two weeks before the charges were dropped, Foxx texted her staff, dismissing him as a “washed-up celeb who lied to cops,” and telling them he was being charged too harshly. -CBS2 Chicago

Meanwhile, Smollett was kicked off of Empire, while Fox announced that the next season will be its last.