Special prosecutor appointed to look at Kim Foxx's handling of the Smollett case (Update: Foxx responds)

Jussie Smollett may not be off the hook yet and State’s Attorney Kim Foxx may also be in some trouble. Friday a judge announced that a special prosecutor would be appointed to look into the unusual handling of the case by Foxx’s office. From the Chicago Tribune:


Judge Michael Toomin ruled that State’s Attorney Kim Foxx had the right to withdraw from the prosecution but could not legally appoint her top deputy to handle the case in her place.

The special prosecutor could end up charging Smollett, Toomin said, and if the investigation uncovers suspicion of wrongdoing by others, additional charges could be brought.

Reporter Charlie De Mar tweeted out the conclusion of Judge Toomin’s decision which states that since Foxx had recused herself but failed to transfer the case to another office there was effectively no State’s Attorney in charge when Smollett was arrested, charged and eventually released.

From the Chicago Sun-Times:

“There was no duly elected state’s attorney when Jussie Smollett was arrested. Ms. Foxx had already effected her recusal,” Toomin said, nor was there any legally appointed prosecutor when Smollett was charged, or the charges dismissed.

Toomin expressed concerned about Foxx’s decision to delegate case to Magats.

“There isn’t an office of ‘acting states attorney.’ It existed only . . . in the imagination of Ms Foxx,” Toomin said.


Gloria Schmidt, the attorney representing two brothers who participated in the hate crime hoax, said the appointment of the special prosecutor amounted to a do-over of the entire case. “The special prosecutor would have an opportunity to look at the evidence and effectively do this whole case over again — re-charge him, re-arraign him, reconvene the grand jury,” Schmidt told NBC News. She added, “It’s like we’re back to square one.”

The push to appoint a special prosecutor was made by a retired judge named Sheila O’Brien. O’Brien retired from the bench a decade ago and currently doesn’t even have a law license:

O’Brien retired from the appellate court nearly a decade ago and has been known since, if at all, for her activism within the Catholic church.

Since retiring in 2011, O’Brien said she spent time with her family or caring for elderly loved ones, occasionally working as a legal consultant. Her law license lapsed in 2014, and she has been filing her petitions and appearing in court “pro se,” as a lay person. At court appearances she has mentioned, wryly, that she is wearing borrowed outfits, because she hasn’t needed a business wardrobe for years.


There has been speculation that O’Brien is looking to run for office or perhaps campaign to take Kim Foxx’s job but she claims that’s not the case. “I did this because it had to be done,” she said.

Update: The Chicago PD is happy to cooperate with the special prosecutor:

Update: Kim Foxx has released a statement in response.

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John Stossel 6:41 PM on November 28, 2023