Cook County Record

Sunday, December 15, 2019

Special prosecutor for Smollett case could have implications for Chicago's lawsuit vs actor over hoax investigation


By Jonathan Bilyk | Jun 24, 2019

Illinois foxx kim 1280
Cook County State's Attorney Kim Foxx | Youtube screenshot

No one knows what will come next for actor Jussie Smollett, should a Cook County judge follow through and appoint a special prosecutor to look into how the Cook County State’s Attorney’s Office handled the criminal charges against him.

The ramifications of that decision, however, could extend beyond the Smollett criminal case, as it could also sideswipe the lawsuit brought by Chicago City Hall against Smollett, in which the city is asking the courts to force the actor to cover the costs of the police investigation that turned over Smollett’s alleged hoax.

On June 21, Cook County Judge Michael Toomin granted a request filed by a former Illinois appellate judge to appoint a special prosecutor to unravel the legal perplexities that have shrouded the Smollett case for months.

Jussie Smollett

“… The unprecedented irregularities identified in this case warrants the appointment of independent counsel to restore the public’s confidence in the integrity of our criminal justice system,” Judge Toomin wrote, to conclude his 21-page judgment.

Toomin granted the request of petitioner Sheila O’Brien, a former Illinois appellate justice, who had asserted the appointment of a special prosecutor was required in the matter.

In the opinion, Toomin found Cook County State’s Attorney Kim Foxx had legally bungled her purported “recusal” from the prosecution of Smollett. The judge noted Illinois law requiresdthe state’s attorney to notify the court of her recusal, which would then require a judge to appoint a special prosecutor to handle the matter.

In this case, Foxx had stated she was recusing herself from the case, seemingly citing her involvement early on in the case with family and other associates of Smollett, while the actor was still considered a "victim" in the alleged attack. But later, her office said Foxx had not legally recused herself, but had only used the term "recusal" in the "colloquial" sense when referring to her decision to step aside from prosecuting Smollett.

In this case, the judge said, Foxx failed to notify the court of her recusal. But he said she also improperly delegated her First Assistant State’s Attorney Joe Magats to serve as “the Acting State’s Attorney for this matter.”

Judge Toomin said that delegation was illegal, as the office of “Acting State’s Attorney” is not one that exists under Illinois law.

“There was and is no legally cognizable office of Acting State’s Attorney known to our statutes or to the common law,” Toomin wrote. “Its existence was only in the eye or imagination of its creator, Kim Foxx.”

As a result, Toomin said, while Magats continued to claim to lead the prosecution of Smollett, there was actually no legally recognized prosecutor in the courtroom at the time Foxx’s team moved to drop the charges against Smollett.

This, Toomin said, effectively voids those actions.

Further, he said, the status of the case now requires a special prosecutor to sort it all out, and determine whether to resume the prosecution of Smollett, or even pursue charges against others associated with the case.

“… 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,” Toomin wrote. “Additionally, in the event the investigation establishes reasonable grounds to believe that any other criminal offense was committed in the course of the Smollett matter, the special prosecutor may commence the prosecution of any crime as may be suspected.”


The potential to reset the criminal process against Smollett, however, could also impact another court proceeding, this one slated for the Cook County civil courts, in which the city of Chicago has sued Smollett.

In that action, the city has accused Smollett of violating city ordinances which give the city the legal authority to pursue people in court for knowingly making false statements to police, which the city has said undermines the criminal justice system and wastes taxpayer money.

The lawsuit does not specify how much money the city is demanding Smollett be made to repay, but notes the ordinance gives the city the authority to demand up to three times the amount the city spent investigating the allegedly false claims, as well as court costs and attorney fees.

The city has stated the investigation of Smollett’s case racked up more than $130,000 in police overtime costs alone.

The lawsuit was filed a little more than two weeks since Foxx’s office refused to prosecute Smollett.

Smollett was charged by a grand jury after police spent days reconstructing and checking Smollett’s story against evidence.

Smollett, who is black and gay, had a recurring role on the Fox network television series “Empire.” In January, Smollett claimed he was attacked in Chicago’s Streeterville neighborhood by two white mean wearing “Make America Great Again” hats, which were emblematic of the campaign of President Donald Trump. According to Smollett’s claims, his attackers beat him, poured bleach on him and hung a noose around his neck, while shouting racist and homophobic epithets and yelled “This is MAGA country!” another reference to political supporters of Trump.

His story was amplified around the world, with celebrities and prominent Democratic politicians rushing to express sympathy and deride the perceived bigotry of their political opponents.

However, as police investigated the story, the case was branded a hoax, resulting in the indictment of Smollett.

The decision by Cook County prosecutors to abruptly drop charges and allow the case to be initially sealed enraged Chicago Police leadership and then-Mayor Rahm Emanuel, who called the decision a “whitewash of justice.”

The city ultimately sued Smollett, specifically accusing him of violating the city’s Fales Statements Ordinance.

A city spokesman declined to comment on the case, or how the matter might be influenced by Judge Toomin’s ruling to authorize the appointment of a special prosecutor.

However, the appointment of a special prosecutor could have big implications for the city’s lawsuit, said James Sotos, an attorney and principal at The Sotos Law Firm in Chicago.

Sotos’ firm specializes in defending police officers and prosecutors who have been sued or accused of misconduct.

Sotos noted the city’s lawsuit, while not based entirely on the failure to prosecute Smollett, was “clearly brought out of frustration at the unusual manner by which the charges were resolved.”

“The revival of the probability of that prosecution being resumed, it does create the possibility of the city’s civil case being stayed,” Sotos said.

He said it is unclear whether a conviction would prevent the city from collecting from Smollett, if it were to prevail in its lawsuit.

He noted this is a “pretty unique case,” in which a Hollywood actor “with some means” allegedly staged a crime for “ulterior motives.” Then, after prosecutors dropped charges, Smollett’s attorneys and others associated with him “said extremely inflammatory things about the Chicago Police Department,” Sotos said.

“So, this lawsuit may well stand on its own,” Sotos said.

But Sotos said he would expect a special prosecutor, at a minimum, to seek to put the city’s lawsuit on hold until the criminal case is resolved in some way.

“I’m thinking a special prosecutor would not want parallel cases, using the same evidence from the same sources, going on at the same time,” said Sotos.

The city’s lawsuit is next due in court for a status hearing in August.

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Sotos Law FirmCook County State's Attorney's OfficeCircuit Court of Cook CountyCity of Chicago

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