Judge denies requests for new judge in Smollett special prosecutor matter, quashes subpoena for Kim Foxx

Retired Judge Sheila O’Brien had a rough day in court Friday, as she continued to lobby for a special prosecutor to investigate how Cook County State’s Attorney Kim Foxx handled the prosecution of “Empire” actor Jussie Smollett.

A week after O’Brien successfully petitioned Chief Criminal Courts Judge LeRoy K. Martin Jr. to step aside from hearing her petition for a special prosecutor, O’Brien unsuccessfully tried to swap out Martin’s replacement, veteran Judge Michael Toomin.

Toomin on Friday denied a motion for a substitute judge for procedural reasons, and similarly struck down O’Brien’s request to have Toomin ask the state Supreme Court to assign the case to a judge from outside Cook County.

Toomin also denied a request to continue the hearing, so that O’Brien could petition the state Supreme Court to appoint another judge. O’Brien’s subpoenas for Smollett, Foxx and Foxx’s top deputy, Joseph Magats, likewise, were quashed by the judge on technical grounds — and the hearing ended with Toomin setting a May 31 date for arguments on the question of whether or not to appoint a special prosecutor at all.

O’Brien has questioned the process Martin used to “transfer” the case to Toomin, and whether the procedures followed state law. Toomin ruled that the transfer was fine, and suggested that his experience hearing multiple petitions for special prosecutors during his 40 years on the bench might explain why Martin handed the case off to him.

“If the Supreme Court feels that my position here is improper, I’m certain they can take such action to address that issue,” Toomin said.

O’Brien in April filed a petition calling for a special prosecutor to investigate how Foxx and her staff handled Smollett’s case, arguing that the controversial decision to dismiss all disorderly conduct charges against the actor had damaged the reputation of the county’s justice system.

Foxx’s office and Smollett’s lawyers have opposed the petition, noting that O’Brien has not clearly stated a conflict of interest that would require Foxx to step aside, and that the county Office of the Independent Inspector General already has opened an investigation of the case.