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Martin sends Jussie Smollett special prosecutor request to another judge

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

One of Cook County’s most senior judges will decide whether to appoint a special prosecutor to investigate how State’s Attorney Kim Foxx’s office handled the criminal case against “Empire” actor Jussie Smollett.

Judge Michael Toomin, who has been on the bench in Cook County or the state Appeals Court since 1980, will take over from Chief Criminal Courts Judge LeRoy K. Martin Jr., after Martin opted to “transfer” the case Friday.

Sheila O’Brien, a retired judge who had petitioned for a special prosecutor to probe the Smollett case, had asked Martin to recuse himself because Martin’s son was hired as a prosecutor last year. The younger Martin’s boss, Foxx, might be a witness, O’Brien argued.

At a brief hearing at the Leighton Criminal Courthouse Friday, Martin said it was not any conflict but the intense public attention on the case that made it “prudent” for him to hand it off to another judge. Martin, pointedly, referred to the move as a court transfer — not a recusal.

“I’m unwilling to recuse myself, because I don’t think legally there is any reason,” Martin said, noting that he had appointed the Illinois Attorney General’s office as a special prosecutor to replace Foxx’s office in a case just the day before. “Because of tremendous amount of public interest in this case — and I am not unmindful that there are people in the public that believe my being on this case somehow taints the proceedings. … I’m going to transfer the case.”

Toomin is presiding judge of Juvenile Division, and once held Martin’s post as head of the criminal courts. He also was appointed to the state appeals court from 2008 to 2010, a period that overlapped with O’Brien’s own 15-year tenure on the appeals court bench. Martin’s son, LeRoy III is assigned to juvenile court.

The case may yet land with another judge; O’Brien also has asked that the decision on a special prosecutor be made by a judge from outside Cook County, a change that would require Toomin to request the state Supreme Court appoint a judge from another jurisdiction. The next hearing on the matter was scheduled for May 17.

Toomin has history in dealing with special prosecutors, and has presided over several landmark cases.

In 2000, Toomin declined to appoint a special prosecutor to investigate the decision to prosecute two boys, who were later cleared by DNA evidence, for the murder of 11-year-old Ryan Harris, and in 2012, he appointed former U.S. Attorney Dan Webb to review the death of David Koschman during an altercation with former Mayor Richard M. Daley’s nephew, Richard “R.J.” Vanecko.

In 1988, Toomin sentenced El Rukn gang leader Jeff Fort to 75 years in prison for murder. Toomin also presided over the historic retrial of Outfit hitman Harry Aleman, who had bribed the judge that acquitted him of murder in his first trial.

Locke Bowman, a Northwestern University Law School professor who had asked for a special prosecutor in the Koschman case, said he was “puzzled” by Martin’s decision to step aside.

“At the end of the day, we’re talking about two very capable jurists in both Judge Martin and Judge Toomin,” Bowman said. “But I’m surprised [Martin] felt the need to [transfer] from the case.”

O’Brien has called for an independent prosecutor to investigate Smollett, who was accused of staging a fake hate crime, as well as how Foxx and her staff handled disorderly conduct charges filed — and abruptly dismissed — against the actor.

The decision in March to drop all counts against Smollett less than a month after a grand jury handed up a 16-count indictment drew immediate criticism from Mayor Rahm Emanuel, who called the move a “whitewash of justice.” Foxx has compared the handling of the case to “alternative prosecution” deals made in thousands of low-level felony cases each year.

Foxx’s office has argued that she and her staff did nothing wrong in closing out Smollett’s case, and that O’Brien’s request for an independent investigation would duplicate a review now under way by the county Office of the Independent Inspector General.

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