Judge won’t let Jussie Smollett intervene in special prosecutor case

Finding that his decision to appoint a special prosecutor will not necessarily lead to renewed charges against Jussie Smollett, a Cook County judge refused Wednesday to let the actor intervene in a case that nevertheless remains a looming legal threat.

Cook County Judge Michael Toomin also told Smollett’s lawyers they had waited too long to get involved in the case that led him in June to decide Smollett’s prosecution should be further investigated.

Smollett lawyer Tina Glandian said in court it would “boggle my mind” if the judge refused to let Smollett take part in the case that has raised the possibility of new charges against her client. But the judge explained that any new charges would be only a conditional result of his order— not a direct result — because the special prosecutor would have to decide how to proceed.

The hearing shed no new light on the ongoing search for someone to take that job.

“It’s become abundantly clear that nobody wants to actually deal with the merits of this case,” Glandian told reporters after court. “Nobody really wants the truth here.”

Retired appellate court Judge Sheila O’Brien, who filed a petition in April seeking the special prosecutor, called it “a good day for justice.”

“This was not about whether Jussie Smollett’s guilty or not guilty,” O’Brien said. “No. It was about Kim Foxx and her duties as a state’s attorney and whether she fulfilled her duties as the state’s attorney in this case.”

During the hearing at the George N. Leighton Criminal Courthouse at 26^th and California, Toomin also denied a motion by Smollett’s lawyers seeking a new judge to preside over the case. He next denied Smollett’s motion to intervene in the case. Given that ruling, he refused to consider other motions brought by the actor’s attorneys.

In those motions, Smollett’s lawyers hoped to persuade Toomin to reconsider appointing a special prosecutor and sought the release of transcripts of grand jury testimony by two brothers involved in the case, Olabinjo and Abimbola Osundairo. Chicago police have said the brothers confessed to attacking Smollett in exchange for a $3,500 payoff.

But Smollett’s lawyers have said the brothers were aware before they were taken into police custody that investigators were skeptical of Smollett’s story.

“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,” Glandian has argued.

Weeks after a grand jury issued a 16-count indictment against Smollett earlier this year for allegedly making false reports to Chicago police about a Jan. 29 attack near his Streeterville apartment, Foxx’s office abruptly dismissed the case against the “Empire” actor.

Though Smollett’s lawyers have said Toomin’s special prosecutor order repeatedly implied Smollett is guilty, Toomin’s ruling cited Foxx’s decision to recuse herself from Smollett’s case as the primary reason she had to be replaced.

Toomin ruled that Foxx’s contention that she had recused herself only 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.

Contributing: Andy Grimm