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Retired judge has questions about judge switch in Jussie Smollett matter

Former State Appeals Court Judge Sheila O'Brien walks out of the Leighton Criminal Courthouse on Thursday, May 2, 2019. | Ashlee Rezin for the Sun-Times

To avoid raising concerns of a conflict of interest by a skeptical public, the top criminal courts judge in Cook County stepped aside last week to let another judge decide whether to appoint a special prosecutor to investigate how actor Jussie Smollett’s case was handled.

But the retired judge who is calling for the special prosecutor now wants to know how Judge LeRoy K. Martin Jr. settled on sending the case to veteran Judge Michael Toomin, court records show.

Martin on Friday announced he would “transfer” the matter to Toomin, head of the Juvenile Division and one of the most senior judges on the Cook County bench, after retired state Appeals Court Judge Sheila O’Brien called for Martin to recuse himself. Martin’s son, LeRoy Martin III, was hired last year as an assistant state’s attorney, and O’Brien argued that Martin might have faced a conflict because State’s Attorney Kim Foxx could be called as a witness.

In a motion filed Monday, O’Brien notes that in court Friday, Martin said he had “called Judge Toomin” and “spoke to him” about transferring O’Brien’s petition to him.

“The content of that phone call and the disclosure of the complete selection process of Judge Toomin is essential to the transparency of this case and to assure the public of the fair and impartial administration of justice,” O’Brien wrote in her motion. O’Brien is asking for public disclosure of who was on the phone call, what was discussed and the procedure and standards used to select Toomin.

In a separate filing, titled “Disclosure,” O’Brien also notes that she and Toomin served on the state court of appeals, with Toomin’s two-year stint on the appellate bench overlapping with O’Brien’s 17 years with the court. However, O’Brien wrote that she and Toomin were assigned to different divisions of the court, and she does not recall that they ever presided over a case together

The next hearing on O’Brien’s petition for a special prosecutor, before Toomin, is set for Friday.