A judge has agreed to appoint a special prosecutor to investigate the decision by Cook County prosecutors to dismiss all charges against actor Jussie Smollett, who was accused of lying to the police by claiming he was the victim of a racist and homophobic attack in downtown Chicago in January. On Friday, Cook County Judge Michael Toomin suggested Cook County State's Attorney Kim Foxx mishandled the case by appointing a top aide to handle it after she recused herself.

Foxx had been in contact with a relative of the actor and had been approached by former first lady Michelle Obama's one-time chief of staff on behalf of Smollett's family. She explained at the time that she was recusing herself to avoid "even the perception of a conflict" of interest.



In his ruling, Toomin said he had no problem with Foxx's recusal but claims she had no right to select someone from her office to handle the prosecution, saying what she did amounted to naming her own special prosecutor.

"State's attorneys are clearly not meant to have unbridled authority to appoint special prosecutors," The Chicago Tribune reported. "She appointed (her top assistant) to an office, to an entity, that has no legal existence. ...There isn't an office of the 'acting state's attorney.' It existed only ... in the imagination of Ms. Foxx."

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In a statement released Friday, Foxx said she was pleased the court agreed there was no conflict of interest, but said she was acting on the advice of her then chief ethics officer when she decided to recuse herself.

"I respectfully disagree with the court's conclusion that, in the absence of any conflict, the appointment of a special prosecutor is required," Foxx said. "As always, I remain committed to transparency, justice, and the public safety of the communities we serve."

Foxx has been under fire for her handling the probe into the former "Empire" actor's claim he was attacked by two men who yelled racist and homophobic slurs, tossed bleach on him and hung a rope around his neck. Foxx's office charged Smollett with 16 counts of disorderly conduct after police announced that their investigation showed that Smollett staged the attack on himself.



Foxx's office dropped all of the charges weeks later, drawing ire from the city's mayor and police chief and prompting a former state appellate judge to push for a special prosecutor. The former judge who made the request, Sheila O'Brien, called Toomin's ruling "a good day for justice," reports CBS Chicago. In calling for a special prosecutor, O'Brien said it appeared to her and others that Smollett had "received special treatment" from Foxx's office.

Foxx defended the decision to drop the charges in an interview with CBS News' Adriana Diaz.



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

In a tweet, Chicago police spokesman Anthony Guglielmi said the department stands "firmly behind the work of the detectives in investigating the fabricated incident reported by Jussie Smollett" and will fully cooperate with the special prosecutor.

We stand firmly behind the work of detectives in investigating the fabricated incident reported by Jussie Smollett & #ChicagoPolice will fully cooperate with the court appointed special prosecutor. pic.twitter.com/bCDF0NYfzP — Anthony Guglielmi (@AJGuglielmi) June 21, 2019

Foxx defended her handling of the case and said she would welcome an independent investigation. But her office opposed such a special prosecutor, explaining that the investigation would just duplicate the efforts of a county inspector general's office probe that is already underway.

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, reports CBS Chicago. It's unclear how long that process will take.