Cook County State’s Attorney Kim Foxx says that neither she nor her top deputy need to appear at a hearing this week on a former judge’s request to appoint a special prosecutor to investigate how her office handled Jussie Smollett’s case.
In one of three motions filed Tuesday, Foxx’s office opposed former Appellate Court judge Sheila O’Brien’s request for a special prosecutor to probe the “Empire” actor’s case. The second seeks to quash subpoenas for Foxx and her top assistant, Joseph Magats, and bar O’Brien from requesting further subpoenas. The third motion seeks court permission to allow Foxx’s office and the county inspector general access to records that were sealed at the same hearing where prosecutors dropped all charges against Smollett for allegedly staging a fake hate crime.
O’Brien had subpoenaed Foxx and Magats, and requested Smollett appear, at a hearing set for Thursday.
In the motion opposing appointment of a special prosecutor, Foxx argues that state law only allows an elected state’s attorney to be removed from a case if they are “sick, absent or otherwise unable to fulfill his or her duties” or has an “actual conflict of interest.”
Foxx, who a week before Smollett was charged, announced to her staff that she as recusing herself from the case and turning the final decision-making over to Magats, argues that she has no “actual” conflict in Smollett’s case. Foxx has said she recused herself because she was in communication with a Smollett relative during the early weeks of the hate crime investigation, when Smollett was considered a victim.
O’Brien’s petition does not point to an actual conflict of interest, but only seems to question Foxx’s handling of the case — a matter that Foxx argues will be investigated during a review started earlier this month by the county Office of the Independent Inspector General.
O’Brien’s request for information from Foxx and Magats violates state law that prosecutors are to be allowed “wide discretion” in decisions to charge or dismiss cases, one of Foxx’s motion states. A special prosecutor investigation, Foxx argues, would duplicate and possibly interfere with the investigation started two weeks ago by county Inspector General Patrick Blanchard.
“The state’s attorney had no actual conflict in this case, nor has petitioner brought forth any facts or evidence of such a conflict,” the motion states. “What petitioner seeks — an independent inquiry into decision that were made by the State’s Attorney’s Office in this matter — has already been called for by the State’s Attorney herself, and is underway.”
O’Brien filed a petition for a special prosecutor that included a lengthy timeline of events in Smollett’s case and public statements by police and prosecutors. Smollett reported he was attacked by two men in the early morning hours of Jan. 29, and that his assailants shouted racist and homophobic insults at the actor, looped a thin rope noose around his neck, and poured bleach on him.
In the ensuing weeks, police identified two acquaintances of Smollett, brothers Olabinjo and Abimbola Osundairo, as suspects. After a lengthy interrogation, the brothers, one of whom worked as Smollett’s personal trainer, said the actor had paid them to stage the attack. Smollett was charged with 16 felony counts of disorderly conduct, but just weeks after a formal indictment was handed up, prosecutors dismissed all charges in exchange for Smollett forfeiting $10,000 he’d posted as bond.