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Search for Jussie Smollett special prosecutor narrows

Judge Michael Toomin has at least a few state’s attorneys willing to investigate ‘Empire’ actor and Kim Foxx.

Jussie Smollett takes a selfie with a supporter as he leaves the Leighton Criminal Courthouse.
Judge Michael Toomin apparently is still looking for someone to step up as special prosecutor and review the case against “Empire” actor Jussie Smollett, shown here posing for a selfie with a fan as he left the Leighton Criminal Court Building in Chicago.
Ashlee Rezin/Sun-Times

A Cook County judge is narrowing his search for a special prosecutor to investigate how State’s Attorney Kim Foxx’s office handled the controversial decision to dismiss felony charges against “Empire” actor Jussie Smollett.

Nearly a month after Judge Michael Toomin announced he would appoint a prosecutor to review the case — which could lead to Smollett being recharged — Toomin appears already to have ruled out some candidates for the task that could make someone an overnight celebrity.

State law requires Toomin to reach out first to the offices of the Illinois attorney general and the Illinois state’s attorney appellate prosecutor offices. After that, he asks all elected state’s attorneys. If none step up or seem up to the task, Toomin can hire a private attorney.

Smollett’s lawyers on Friday filed motions seeking to cancel or limit the scope of the special prosecutor probe, and also to replace Toomin with another judge.

Toomin has set no date to make his choice but appears to have quickly ruled out those two state offices; multiple county prosecutors said they received letters from Toomin dated June 25, four days after his ruling. Through a spokeswoman, Attorney General Kwame Raoul wouldn’t say if he had declined Toomin’s invitation. The appellate prosecutor’s office did not respond to multiple requests for comment.

There are some conflicts of interest for both state offices: Foxx sits on the board of governors that oversees the appellate prosecutor; Raoul donated $32,000 to Foxx’s 2016 campaign.

Toomin also has turned down at least one volunteer. Eric Helland, state’s attorney for Grundy County, received a letter from Toomin on Friday, declining the downstate prosecutor’s offer to take on the Smollett case. In the note, Toomin expressed concern about cost, staffing and distance, writing that “an office in closer proximity to our court would be better suited to handle this matter.”

Grundy County is just southwest of Joliet; Helland conceded the case could have been a lot for his staff of five attorneys.

“I’m an elected official. When other counties reach out to me for help, I say ‘yes,’” Helland said. “If I had an ax to grind, I’d have said no.”

LaSalle County State’s Attorney Karen Donnelly and Kankakee County’s Jim Rowe have publicly said they turned down the Smollett case, citing cost. Donnelly said she reviewed police reports that were released to the media, and felt there was enough evidence to charge Smollett.

Both Helland and Donnelly know several of their fellow elected prosecutors had volunteered to take the case. That would be a marked difference from another recent, high-profile case in which Cook County used an outside prosecutor: the trial of Chicago Police Officer Jason Van Dyke for the murder of Laquan McDonald.

Anita Alvarez, then Cook County state’s attorney, recused her office from the case in May 2016; Judge Vincent Gaughan then was turned down by 100 of the remaining 101 state’s attorney’s offices before Kane County State’s Attorney Joseph McMahon volunteered.

Helland said he can’t recall if he volunteered to prosecute Van Dyke— he said he thought he had, but might have been convinced by a staffer that the office budget wouldn’t allow it— but he can understand why his fellow state’s attorneys would be more likely to take on the prosecution of Smollett than that of Van Dyke.

“The reason (Van Dyke’s case) was too hot for a lot of prosecutors, in terms of the morale of police officers, most state’s attorneys would have thought, we’re working with officers, we have a good relationship, and we’re prosecuting their cases. Turning around and prosecuting (police) is not a popular thing.”

Kane County’s McMahon said he got Toomin’s letter the day after he announced he would not seek a third term as state’s attorney; with his staff only a few months removed from the Van Dyke verdict, he would not commit to another high-profile case. McMahon said he has been contacted by “more than two” other elected state’s attorneys interested in the case. McMahon counseled against taking on Smollett’s case to push an agenda or hoping for national publicity.

“If you look in the mirror, and because you think this is a case you need to take because it calls into question he credibility of prosecutors, you need to be public about your reasons for taking the case,” McMahon said. “If you have some other motivation for taking the case, that will be problematic down the road, and that will reveal itself eventually.”