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Judge to consider whether to stay on special prosecutor matter in Smollett case

Jussie Smollett leaves court after prosecutors dropped charges against him for allegedly staging a hate crime attack on himself. | Ashlee Rezin/Sun-Times

The chief judge of Cook County’s Criminal Court Thursday grudgingly agreed to consider a request that he let another court decide whether to appoint a special prosecutor to investigate State’s Attorney Kim Foxx’s handling of Jussie Smollett’s case.

Judge LeRoy K. Martin Jr.’s son, Leroy III, was hired last year by Foxx’s office, creating conflict of interest for the elder Martin if he weighs-in on starting an investigation that could see Foxx called as a witness, retired Appeals Court Judge Sheila O’Brien argued Thursday.

“You’re going to be deciding whether the state’s attorney, your son’s boss, is telling the truth,” O’Brien said.

Martin said he would rule on whether or not to recuse himself on the matter at a hearing on May 10.

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
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

Martin said he had been prepared to rule on motions O’Brien calling for a special prosecutor to investigate whether to revive Smollett’s prosecution after the state’s attorney’s office dismissed all charges in an abruptly announced, unorthodox deal, and to examine how Foxx and her staff handled the case. O’Brien also has petitioned to have a judge from outside Cook County make the decision on whether or not to appoint a special prosecutor.

Foxx and her top deputy were not in court Thursday, having argued in pre-hearing briefs that they were not bound by subpoenas they had received from O’Brien. Smollett, whose appearance O’Brien also has requested, also did not attend.

Foxx’s office has argued that there was no conflict of interest that disqualified the office from handling Smollett’s case, and said appointing a special prosecutor would duplicate an investigation that has been undertaken by the county office of the independent inspector general.

Martin Thursday shifted between his typically cordial demeanor to moments of visible annoyance, noting that he hears cases from lawyers employed by the state’s attorney “every single day,” with no one questioning whether his son’s employment as a prosecutor creates a conflict.

“It troubles me that we’re having this discussion about my family member, bringing one’s family into these circumstances,” Martin said. “In the course of your career and my career as a lawyer and a judge this is a rather unique situation.”

Assistant State’s Attorney Mark Rotert, head of the office’s Conviction Integrity Unit, argued that O’Brien’s latest motion was a distraction, and that state law “slam dunks” her petition for a special prosecutor and attempts to subpoena Foxx and other witnesses.

“She can do a good job of filing all kinds of motions and subpoenas and getting publicity,” Rotert said. “Because she cannot win, she comes in and misdirects with all sorts of issues about your son.”

Martin said he wanted a few days to reach a decision.

“I’m a cautious guy,” he said. “I’m the kind of fellow that carries an umbrella on a sunny day.”

Steven Lubet, a legal ethics professor at Northwestern University, said Martin wouldn’t have to recuse himself, unless he opts to step aside out of what Lubet called an “extreme caution.”

“It shouldn’t matter in this case that [Martin’s son] is one of hundreds of [assistant] state’s attorneys,” Lubet said. “It’s not a situation that requires mandatory recusal, but sometimes judges will just decide to step aside out of extreme caution.”