CHICAGO — A judge on Friday ordered that a special prosecutor be appointed to independently investigate charges that the actor Jussie Smollett staged a racist hate crime against himself, as well as the prosecutors’ abrupt decision in March to drop the felony counts against him.
The judge’s order concerned the decision by Kim Foxx, the Cook County state’s attorney, to separate herself from the investigation and appoint her deputy to serve as the top official on the case. In a sharply critical ruling, Judge Michael P. Toomin of the Circuit Court of Cook County wrote that the decision raised “problematic concerns” because the proper procedure should have involved appointing a special prosecutor from outside her office.
Instead, Judge Toomin wrote, Ms. Foxx’s breach of protocol resulted in a “fictitious office” with no “legal existence” having control over the Smollett case.
[A timeline of the Jussie Smollett case.]
“There was an is no legally cognizable office of Acting State’s Attorney known to our statues or to the common law,” the judge wrote. “Its existence was only in the eye or imagination of its creator, Kim Foxx.”
Mr. Smollett, who turned 37 on Friday, had been accused of paying two acquaintances to stage an attack against himself in which they shouted racist and homophobic slurs and placed a noose around his neck. In February, Ms. Foxx removed herself from the case, saying publicly that it was because she had earlier contact with representatives of Mr. Smollett. Ms. Foxx appointed her deputy, Joseph Magats, to oversee the case.
On March 26, the office suddenly dropped all 16 felony counts against Ms. Smollett, saying that he had agreed to forfeit the $10,000 bond paid for his release and that he was not a threat to public safety. The move prompted angry reactions from Chicago’s mayor at the time, Rahm Emanuel, and Eddie Johnson, the police superintendent.
A retired judge in Illinois, Sheila O’Brien, questioned the office’s handling of the case, demanding that a special prosecutor be appointed to re-evaluate the decision making.
Judge Toomin wrote in his decision that the appointment of an independent counsel was meant to “restore the public confidence in the integrity of our criminal justice system.”
The decision does not mean that Mr. Smollett will face charges again, but Judge Toomin gave the special prosecutor the power to reopen the case “if reasonable grounds exist,” and to bring charges against anyone else believed to have committed a crime in the course of the case.