Judge To Appoint Special Prosecutor To Jussie Smollett Case; Prosecutor Could Reinstate Charges

CHICAGO (CBS) -- A Cook County judge has ruled a special prosecutor should be appointed to investigate the Jussie Smollett case, saying Cook County State's Attorney Kim Foxx had no authority to hand it off to her top deputy after announcing she recused herself.

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A special prosecutor would be allowed to bring new charges against the "Empire" actor if there are "reasonable grounds" to do so, Judge Michael Toomin ruled.

Toomin said Foxx's contact with a relative of Smollett's before he was charged did not rise to the level of a conflict of interest. He said she had no authority to appoint her top deputy, First Assistant State's Attorney Joseph Magats, to oversee the case after announcing she was recusing herself. He said Foxx effectively appointed Magats to a "fictitious" office to serve in her stead.

"What causes concerns is that she appointed him to an entity that had and has no legal existence. There is no office of acting state's attorney," he said.

"Here, the ship of the State ventured from its protected harbor without the guiding hand of its captain. There was no master on the bridge to guide the ship as it floundered through unchartered waters," Toomin wrote in his ruling.

As a result, Toomin said there effectively was no state's attorney when Smollett was arrested, charged, indicted, arraigned, and finally when charges later were dropped. So all of those decisions were invalid.

"The unprecedented irregularities identified in this case warrants the appointment of independent counsel to restore the public's confidence in the integrity of our criminal justice system," he wrote.

Chicago Police Department spokesman Anthony Guglielmi said police would "fully cooperate" with the special prosecutor's investigation.

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Retired appellate court judge Sheila O'Brien, who had requested a special prosecutor in the case, called Toomin's ruling "a good day for justice."

Foxx issued the following statement Friday afternoon:

"I am pleased that the court agreed there was no conflict of interest here. Regarding recusal, I followed the advice and counsel of my then Chief Ethics Officer. In any event, I respectfully disagree with the court's conclusion that, in the absence of any conflict, the appointment of a special prosecutor is required."

"As always, I remain committed to transparency, justice, and the public safety of the communities we serve."

The special prosecutor not only will investigate Foxx's handling of the case, but the allegations against Smollett.

"If reasonable ground exist to further prosecute Smollett, in the interest of justice the special prosecutor may take such action as may be appropriate to effectuate that result," Toomin wrote. "In the event the investigation establishes reasonable grounds to believe that any other criminal offense was committed in the course of the Smollett matter, the special prosecutor may commence the prosecution of any crime as may be suspected."

The judge said he will first ask the Illinois Attorney General's office and the state's appellate prosecutor's office to handle the case, then reach out to other county state's attorneys for volunteers. It's unclear how long that process will take.

Smollett had been accused of paying brothers Abel and Ola Osundairo $3,500 to stage a homophobic and racist attack on him on Jan. 29. The brothers' attorneys have acknowledged they took part in a hoax, but said they have apologized for it, and only did so because Smollett paid them.

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Police said the two brothers wore gloves during the staged attack, and did punch Smollett, but the scratches and bruises on Smollett's face most likely were self-inflicted.

Police at the time said the attack was a publicity stunt because the actor was upset about his pay on the show.

Smollett has denied all the allegations.

Foxx previously said she recused herself from the case after having conversations with one of Smollett's relatives before he was charged with disorderly conduct.

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After Magats took over the case, and prosecutors ended up dropping all charges a month after Smollett was arrested, after the "Empire" actor performed 16 hours of community service, and agreed to forfeit his $10,000 bail, but did not admit guilt.

Hundreds of emails and text messages later released by Foxx's office showed two weeks before the charges were dropped, Foxx texted her staff, dismissing him as a "washed-up celeb who lied to cops," and telling them he was being charged too harshly.

Critics have said, had Foxx truly recused herself of the case, it would have been handed over to a state's attorney from a different county.

Attorney Gloria Schmidt says her clients, Abel and Ola Osundairo, are celebrating the decision to appoint a special prosecutor.

"His ruling today makes perfect sense. You can't just create an office and that's effectively what states attorney Foxx did," Schmidt said.

What about double jeopardy? Legal experts say that's not an issue because Smollett was never put on trial in the first place.