Jussie Smollett lawyers: Special prosecutor ruling a ‘travesty of justice’

In motions filed Friday, lawyers for the “Empire” actor have asked to cancel a special prosecutor investigation of his alleged hoax hate crime case, and remove the judge who ordered it.

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Jussie Smollett leaves court after charges were dropped against him. | Ashlee Rezin/Sun-Times

Jussie Smollett and his lawyer, Tina Glandian, leave the Leighton Criminal Court Building in March, after charges against the “Empire” actor were dropped in an alleged hoax hate crime. Smollett’s lawyers Friday filed a motion challenging whether a judge can appoint a special prosecutor who could bring new charges against the actor.

Ashlee Rezin/Sun-Times

Taking aim at a Cook County judge and two key witnesses, Jussie Smollett lawyers have asked to cancel a special prosecutor investigation of the “Empire” actor and to replace the judge who ordered the probe.

In a 2-inch thick stack of motions filed Friday, lawyers for Smollett pointed to evidence they say showed the actor was the innocent victim of an attack planned and executed by two acquaintances, and argued that veteran Judge Michael Toomin made it clear that believed that Smollett faked the assault.

“This case has been a travesty of justice and an unprecedented deprivation of Mr. Smollett’s constitutional rights, including the presumption of innocence and right to a fair trial,” the motion states. “Not only have the media and the public failed to critically look at the evidence (and lack thereof) against Mr. Smollett, but now, (Toomin) has accepted false media reports to presume Mr. Smollett guilty of charges which he pled not guilty to and which were dismissed against him.”

Toomin a month ago ruled that he would appoint a special prosecutor to investigate Smollett’s case, which had been dismissed with little notice or explanation by State’s Attorney Kim Foxx’s office just weeks after a grand jury issued a 16-count indictment against the actor for allegedly making false reports to Chicago police about a Jan. 29 attack near his Streeterville apartment.

Toomin has not announced his pick or set a date for the next hearing in the matter.

Smollett’s motion calls for the judge to either drop the special prosecutor appointment, or to limit the scope of the investigation to “potential misconduct” and not allow a do-over of the hate crime investigation.

In a separate motion, Smollett asks that another judge replace Toomin, based on statements in the judge’s order that repeatedly imply that Smollett is guilty, including opening lines that state “...Smollett conceived a fantasy that propelled him from the role of a sympathetic victim of a vicious homophobic attack to that of charlatan who fomented a hoax the equal of any twisted television intrigue.”

In her motion, lawyer Tina Glandian wrote, “From the outset of the Order, Judge Toomin unequivocally and improperly expresses his opinion that Mr. Smollett is guilty of the charges to which he pled not guilty and which were subsequently dismissed (prior to hearing) against him.”

In still another motion, Smollett’s lawyers ask to unseal transcripts of grand jury testimony of Olabinjo and Abimbola Osundairo, brothers and acquaintances of Smollett’s whom Chicago police have said confessed to attacking Smollett — in exchange for a $3,500 payoff. Smollett’s lawyers say public statements by police and the Osundairos’ lawyer, Gloria Schmidt, are inconsistent with evidence in the case.

Throughout the filings, Smollett’s lawyers point to evidence they received from prosecutors that, they say, shows the brothers planned an attack on Smollett without the actor’s involvement, and that they were aware before they were taken into custody that Chicago police were skeptical of Smollett’s story.

“The discovery reveals an overwhelming amount of evidence of the Osundairo brothers’ involvement in the attack on Mr. Smollett,” Glandian wrote. “But critically, other than the Osundairo brothers’ self-serving statements which resulted in their release from custody with no criminal charges being filed against them, not a single piece of evidence independently corroborates their claim that the attack was a hoax.”

While Smollett’s motions repeatedly state the Toomin based his decision to appoint a special prosecutor based on inaccurate statements from police and news stories, Toomin’s ruling cites Foxx’s decision to recuse herself from Smollett’s case as the primary reason that she had to be replaced by a special prosecutor. In an email to staff a week before Smollett was charged, Foxx’s ethics officer said the state’s attorney had recused herself from the Smollett case and delegated decision making to her top deputy.

Foxx’s office days later would publicly announce her “recusal,” stating the state’s attorney had talked to Smollett’s relatives early on in the investigation. Text messages showed that a relative of Smollett’s reached out to Foxx after getting her private number from Democratic fundraiser and former Michelle Obama aide Tina Tchen.

Toomin ruled that Foxx’s contention that she had only recused herself in a “colloquial” sense, and not formally, was bogus and that her continued involvement in the case voided Smollett’s prosecution and the decision to dismiss the case.

Smollett’s lawyers pointed to text messages exchanged between the Osundairos that they show the Osundairo brothers harbored homophobic feelings, despite Abimbola Osundairo working as Smollett’s personal trainer. A check for $3,500 they received from Smollett was for their services as trainers— and an illegal purchase of steroids. Glandian and her co-counsel, Mark Geragos, both have been sued for defamation by the Osundairo brothers.

Schmidt, did not immediately return messages from the Chicago Sun-Times seeking comment. Schmidt has said her clients intend to work with the special prosecutor’s investigation.

The lawyers also said police reports said a security guard working at a hotel the morning of the attack saw two masked men dressed in black jogging away from the location where Smollett said he was assaulted, and that another bystander said she saw a white man with what appeared to be a rope dangling from under his jacket as a previously unmentioned potential third accomplice.

The motion also points out that, even if Foxx improperly prosecuted Smollett’s case after she recused herself, Smollett himself has never challenged her decision to charge him or to drop the charges. If a special prosecutor brought back the charges, it would be double jeopardy, Smollett’s lawyers argue, noting the actor turned over the $10,000 he’d posted as bond to the City of Chicago and that the city has kept the money.

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