A retired judge seeking the appointment of a special prosecutor to investigate exactly what lead Cook County State’s Attorney Kim Foxx’s office to drop charges against “Empire” actor Jussie Smollett has subpoenaed Foxx, her chief deputy, and Smollett to appear at a hearing to discuss the case.
The Chicago-Sun Times reports that retired Cook County appellate judge, Sheila O’Brien, filed a petition last week demanding that a special prosecutor be appointed to investigate Foxx’s office. O’Brien’s filings included a subpoena demanding Foxx’s presence at a hearing to discuss the potential appointment. In addition, O’Brien is seeking to compel the appearance of Foxx’s deputy, Joseph Magats, who was the public face of the “plea deal” Foxx’s office brokered with Smollett, and Smollett himself.
The petition also demands that the three subjects produce a copy of all documents they may have in their possession relating to the case, to ensure “that they have not been altered or destroyed and will not be destroyed throughout this case.”
“Foxx’s conflict in this matter is beyond dispute,” O’Brien wrote in her petition. “Instead, Foxx misled the public into believing that Smollett’s case was handled like any other prosecution and without influence.”
It’s not clear if O’Brien can compel a special prosecutor’s investigation, but it appears she’s going to try. O’Brien has been vocal about the lack of oversight of Foxx’s office in this case, and Foxx’s own lack of attention to how her office handled the Smollett investigation, the charges, and the subsequent “plea deal.” The former appellate judge even penned an article for the Chicago Tribune earlier this month urging the city and county to pursue an investigation into how Foxx handled her clear conflict of interest in the Smollett case.
It’s that conflict of interest on which O’Brien’s case hinges. O’Brien claims that a series of text messages and emails, made public through a freedom of information act request in the days after the Chicago prosecutors revealed their “deal” with Smollett — which required 16 hours of community service and for Smollett to forefeit a $10,000 bond — show that Foxx was communicating directly with a member of the Smollett family. In the exchange, Foxx assures the Smollett relative that she is working to convince the Chicago Police Superintendent to hand over his case to the FBI.
Foxx claims that she “recused” herself from Smollett’s case and that she allowed her deputy, Magats, to handle Smollett. But Illinois law doesn’t allow a State’s Attorney to simply “recuse” herself from a case through a statement; any case involving a potential conflict of interest must be handled by outside counsel. Foxx did not hire outside counsel.
Foxx also appeared to involve herself in Magat’s handling of the case, according to one email message she sent.
“Sooo……I’m recused, but when people accuse us of overcharging cases…16 counts on a class 4 becomes exhibit A,” Foxx wrote to Magats in an apparent plea to Magats to reduce Smollett’s charges. “Pedophile with 4 victims 10 counts. Washed up celeb who lied to cops, 16. On a case eligible for deferred prosecution I think it’s indicative of something we should be looking at generally. Just because we can charge something doesn’t mean we should.”
As a result, O’Brien contends, the Cook County State’s Attorney’s involvement in the Smollett case was “plagued with irregularity.”
A hearing date on the petition has not been set, but will probably take place in late May if the petition is accepted.