A judge in Illinois is calling for a special prosecutor to look into how Cook County prosecutors handled the Jussie Smollett case — which began with the Empire actor reporting a hate crime, then saw him arrested for allegedly faking the incident and finally having all charges against him dropped.
In his order, Cook County Circuit Judge Michael Toomin said "unprecedented irregularities" of the case require an independent counsel to investigate "to restore the public's confidence in the integrity of our criminal justice system."
Depending on the special prosecutor's findings, the disposition of Smollett's case could be nullified, Toomin said, citing the outcomes of similar inquiries.
The decision to appoint a special prosecutor comes three weeks after Chicago police released hundreds of pages of records related to the case investigators worked to build against Smollett.
Smollett, 37, was indicted on 16 felony counts of disorderly conduct, related to making a false report to police about the event in which he alleged he was the victim of a racist and homophobic attack in Chicago in January. Police said they believe Smollett paid two brothers to fake an attack on him in order to get publicity.
Law enforcement officials have said they're frustrated that Cook County State's Attorney Kim Foxx's office ended the case by abruptly announcing Smollett would not face any charges. Then-Mayor Rahm Emanuel, along with Chicago Police Superintendent Eddie Johnson, called it a "whitewash of justice."
Foxx recused herself from the investigation before Smollett was charged, saying she wanted to avoid any appearances of a conflict of interest because of conversations she had with a Smollett family member.
But in a controversial move, Foxx put her top assistant in charge of the case — and Judge Toomin sharply criticized that decision on Friday, saying an independent special prosecutor should instead have been brought in rather than a prosecutor who "was appointed to a fictitious office having no legal existence."
Despite her recusal, Foxx was later shown to have been in frequent touch with that assistant about the case, after her office released a raft of emails and text messages. The messages Foxx wrote to her assistant showed she questioned the criminal charges that had been filed against Smollett.
"So I am recused, but when people accuse us of overcharging cases, 16 counts on a Class 4 felony becomes exhibit A," Foxx wrote in one note.
In an interview with NPR member station WBEZ, Foxx suggested that her office had more pressing issues than Smollett:
"We deal with a lot of things in this city, in this county, not the least of which is a homicide rate that outpaces other major cities, shootings that outpace other major cities, sexual assault, sexual violence, domestic violence. And it is not to diminish that what Mr. Smollett was alleged to have done did have an impact on people who are actual victims of hate crime, did have an impact on how people perceived our city. But he was charged with a Class 4 felony."
Foxx said there had been a lot of confusion about the case — and that it was never very likely Smollett would have gotten a prison sentence if he were convicted.