A special prosecutor will investigate the Jussie Smollett case and could bring charges against the actor

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A judge on Friday approved the appointment of a...

Posted: Jun 22, 2019 9:23 AM

A judge on Friday approved the appointment of a special prosecutor to independently investigate the handling of the Jussie Smollett case in order to "restore the public's confidence in the integrity of our criminal justice system."

Cook County Circuit Judge Michael P. Toomin approved the petition requesting a special prosecutor review the decision by State's Attorney Kim Foxx's office to dismiss the charges against the "Empire" actor, who investigators said staged a hate crime against himself.

The special prosecutor will have the authority to pursue charges for any crime he or she believes was committed in the course of the investigation, Toomin said -- including further prosecution of Smollett.

The judge's ruling was in response to Foxx's apparent withdrawal from the case following questions of potential conflicts of interest and her appointment of her top deputy, Joseph Magats, as the "Acting State's Attorney."

According to Toomin's ruling, Foxx did not have the legal authority to appoint someone with decision-making power. In the case of a formal recusal, Toomin wrote, the court would have been responsible for appointing a special prosecutor.

Foxx's office at one point said she was recusing herself from the case, but later said it used the word "recuse" colloquially, "rather than in its legal sense." But according to Toomin, her withdrawal "was an unconditional legal recusal."

Thus, the Smollett case moved forward without a prosecutor, like a ship without "the guiding hand of its captain," Toomin wrote.

"There was no master on the bridge to guide the ship as it floundered through unchartered waters," he said. "And it ultimately lost its bearing."

In a statement, Foxx disagreed with Toomin's decision.

"As always," she added, "I remain committed to transparency, justice, and the public safety of the communities we serve."

Attorneys for Smollett have not responded to CNN's requests for comment.

Charges against Smollett were dropped

Smollett, who is gay and black, claimed earlier this year to have been the target of a hate crime. Police investigated the case and said they believed Smollett staged the attack the bolster his profile and career.

Smollett was hit with 16 felony counts of disorderly conduct, but weeks later prosecutors dropped the charges, with the State's Attorney's office citing "Mr. Smollett's volunteer service in the community and his agreement to forfeit his bond to the City of Chicago" in a statement.

The move prompted outrage -- particularly from Chicago's police -- and critics claimed Foxx's office treated Smollett differently because he is a celebrity.

Documents released earlier this month revealed that Foxx said in text messages she recused herself on the recommendation of the office's former ethics officer following rumors she was "related or closely connected" to Smollett's family.

"I told her that wasn't true," Foxx said. "She said it was pervasive among CPD and that I should recuse. I thought it was dumb but acquiesced. It's actually just racist."

The city's attorneys have demanded Smollett pay $130,000 to cover the cost of the investigation.

Despite the fact charges were dropped, Smollett was written written out of the final episodes of "Empire's" fifth season. Earlier this month, creator Lee Daniels tweeted that Smollett "will NOT be returning" for the show's sixth.

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