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Judge who fought to get Jussie Smollett special prosecutor frozen out of case

Retired Judge Sheila O’Brien has been barred from filing motions as the ongoing special prosecutor probe continues.

Retired judge Sheila O’Brien, whose activism led to a special prosecutor investigation of ‘Empire’ actor Jussie Smollett, speaks to reporters at the Leighton Criminal Courthouse, Friday morning, Feb. 14, 2020. During a hearing Friday, Judge Michael Toomin barred O’Brien from filing motions as the ongoing special prosecutor probe continues.
Retired judge Sheila O’Brien, whose activism led to a special prosecutor investigation of ‘Empire’ actor Jussie Smollett, speaks to reporters at the Leighton Criminal Courthouse, Friday morning, Feb. 14, 2020. During a hearing Friday, Judge Michael Toomin barred O’Brien from filing motions as the ongoing special prosecutor probe continues.
Ashlee Rezin Garcia/Sun-Times

The retired judge whose activism led to a special prosecutor investigation of how the Cook County state’s attorney’s office handled former “Empire” actor Jussie Smollett’s criminal case has been barred from filing motions as the ongoing probe continues.

Just three days after Special Prosecutor Dan Webb announced new charges against Smollett, Judge Michael Toomin Friday thanked former Appellate Court Judge Sheila O’Brien for her “service” but said she no longer had standing to intervene in the case.

Toomin’s ruling came in response to a flurry of filings by O’Brien in recent weeks, seeking to have the judge bar State’s Attorney Kim Foxx from using taxpayer money to hire private lawyers to represent her office in the special prosecutor investigation. Toomin tossed that motion and said O’Brien will need permission to make any future filings in the case.

“I want to make sure we’re not inconveniencing people in the future” Toomin said, noting that O’Brien had on four occasions sought to subpoena Foxx herself to appear in court. “You don’t’ have standing. We appreciate what you’ve done previously in the case. Mr. Webb is thoroughly capable in this matter.”

O’Brien told Toomin she wasn’t bothered by his order.

“It may sound strange, but I’m happy about your ruling,” said O’Brien, who retired from the appellate court nearly a decade ago, but has been filing legal briefs and subpoenas in connection with the Smollett case as “a private citizen.”

In court Friday, Webb said he had been dealing with the private lawyers over the six months of the investigation, and saw no problem with Foxx’s decision to hire outside counsel. Foxx’s office hired a legal team headed by former federal Judge Ruben Castillo, citing the “onerous” task of reviewing some 100,000 documents tied to the investigation. Webb brushed past reporters as he left the courthouse and did not respond to questions about his ongoing investigation.

Foxx has also retained Washington D.C.-based attorney Michael Bromwich to represent her personally. Bromwich sat in the courtroom gallery Friday, and said after the hearing that he is representing Foxx for free. Bromwich said he came to admire Foxx while serving on the advisory board of the Quattrone Center for the Fair Administration of Justice and University of Pennsylvania Law School.

“I think Kim Foxx is an outstanding public servant,” said Bromwich, a former federal prosecutor and Obama Administration official, who is better known for his more recent work representing Christine Blasey Ford and former FBI Director Andrew McCabe.

Foxx’s office issued a statement later Friday, noting that Toomin “took the extraordinary step of barring” O’Brien from making any future filings. “We agree with his ruling, as we believe this petition was inappropriate, unwarranted, and without merit,” the statement read. “The State’s Attorney’s Office (SAO) has clear authority to retain outside counsel and routinely does so in matters that require additional capacity or expertise. The SAO continues to fully cooperate with the special prosecutor’s review and looks forward to its resolution.”

Tuesday, Webb’s team announced a six-count grand jury indictment alleging Smollett in 2019 falsely reported to Chicago police that he had been the victim of a racially motivated attack by two men near his home in Streeterville.

Smollett had faced a similar, 16-count indictment sought by prosecutors last year, based on the police investigation that determined the actor had paid two acquaintances to stage the fake attack. Those charges were abruptly dropped three weeks later in an unorthodox move that touched off national controversy.

Dan Webb, special prosecutor investigating the Jussie Smollett hate crime case, walks out of the Leighton Criminal Courthouse after a brief hearing Friday.
Dan Webb, special prosecutor investigating the Jussie Smollett hate crime case, walks out of the Leighton Criminal Courthouse after a brief hearing Friday.
Ashlee Rezin Garcia/Sun-Times

Webb was appointed as a special prosecutor in August, and charged with re-investigating the alleged hoax and the state’s attorney’s office decision to drop the case. In a statement released alongside the indictment, Webb said the new charges against Smollett were not necessarily an indication of wrongdoing by Foxx or members of her staff, and the investigation in to how the last year’s case was handled is ongoing.

Foxx faces three challengers in her bid for reelection in the Democratic primary, all of whom have put the Smollett case front and center in their critique of the incumbent. Foxx has touted her record of reforms focused on diverting defendants from jail — and had initially said Smollett’s case was typical of the emphasis on “alternative prosecutions.” This week Foxx picked up endorsements from current Democratic presidential front-runner U.S. Bernie Sanders and a string of local pastors. Friday, her campaign said she would meet with U.S. Sen. Tammy Duckworth, D-Il., to accept her endorsement.

As she left the courthouse Friday, O’Brien seemed relieved to have been sidelined in the Smollett case, and said she had expected that her latest petitions to the court would be rejected.

“I’m just a private citizen, doing all this on my own and part of me says, ‘Huh, I’m out. That’s fine,’” she said.