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Cook County State's Attorney Kim Foxx's office can keep private lawyers in Jussie Smollett probe, judge rules

Megan Crepeau, Chicago Tribune on

Published in News & Features

CHICAGO -- Cook County State's Attorney Kim Foxx's office can continue to use private lawyers to represent it in the special prosecutor's investigation of the Jussie Smollett matter, a judge ruled Friday.

In addition, Judge Michael Toomin issued a broad shutdown of Sheila O'Brien, the retired appellate judge who tried to challenge Foxx's use of outside attorneys -- saying she could no longer file any paperwork in the Smollett case without his explicit permission.

O'Brien last year successfully argued that a special prosecutor should be appointed to probe the hot-button Smollett case. After Toomin appointed veteran attorney Dan Webb in August, Foxx's office retained ex-federal judge Ruben Castillo's firm to assist it in cooperating with the investigation.

O'Brien filed paperwork last month that the Illinois attorney general's office has a duty to represent state officials in such circumstances.

But the state's attorney has every right to hire outside lawyers in specialized matters or when the office itself doesn't have the manpower to address an issue, Assistant State's Attorney Cathy McNeil Stein argued Friday.

Before retaining Castillo's firm, the office already expended significant resources to cooperate with O'Brien's special prosecutor petition, as well as a separate probe by the county inspector general, she said.

"This office has taken lawyers that are supposed to be doing the good work of the county ... and pulled them away from that," she said.

Webb himself said he saw nothing out of the ordinary about working with Castillo's team, with which he has been communicating for months.

"We found it to be routine and ordinary," he said in court.

Toomin agreed, saying it was a commonly accepted practice to let outside attorneys handle certain matters for county prosecutors, and if anything looked wrong with the invoices, the county board would decline to pay.

And O'Brien, who filed numerous long-shot motions leading up to Toomin's appointment of the special prosecutor, can no longer try to intervene in the Smollett matter without the judge's say-so.

 

"Although Ms. O'Brien did a service to the county in filing the petition she did ... that ended with the order of the court granting parts of the petition," Toomin said. "She does not have the standing here today to bring any other action."

The Smollett case has drawn national attention and continues to fuel criticism as Foxx faces a reelection fight.

Police concluded that the actor staged the attack near his home in Chicago's Streeterville neighborhood last January, hiring two brothers to carry out the hoax while using racist and homophobic slurs and shouting that he was in MAGA country -- a reference to President Donald Trump's campaign slogan.

Smollett was charged with faking the crime, but Foxx's office abruptly dropped all 16 counts of disorderly conduct with little explanation at an unannounced court hearing.

The legal fallout continues to reverberate. In August, Webb -- a former U.S. attorney -- was named a special prosecutor and given a broad mandate to investigate the case, including looking into if Smollett should again be criminally charged for his actions that night.

On Tuesday, the case took a new twist, as Webb announced that his special grand jury had indeed reindicted Smollett on six counts of disorderly conduct. The actor is expected back in court Feb. 24.

Webb's probe of prosecutors' action in the case remains ongoing.

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