Ex-judge who wants special prosecutor in Jussie Smollett case has questions about appointment of judge

Megan Crepeau, Chicago Tribune on

Published in Entertainment News

CHICAGO -- The former appellate court judge requesting a special prosecutor to investigate the dismissal of charges against "Empire" actor Jussie Smollett wants to know more about why her request was transferred last week to Cook County Judge Michael Toomin.

The filing Monday by Sheila O'Brien comes after Criminal Division Presiding Judge LeRoy Martin Jr. declined Friday to recuse himself as O'Brien sought and instead appointed Toomin to decide on a special prosecutor.

Martin denied O'Brien's contention that he faced a conflict of interest because his son works as a prosecutor in State's Attorney Kim Foxx's office. O'Brien had suggested the relationship could pose a conflict of interest for Martin to weigh Foxx's credibility if she was called as a witness during the proceedings.

In her filing Monday, O'Brien called for Martin and Toomin to publicly reveal details of their conversations leading up to the transfer, as well as to clarify who selected Toomin to hear the issue and why.

Without that clarity, O'Brien wrote "that this case will proceed under a cloud of doubt, that the reputations of the Circuit Court of Cook County, the parties, the judges, the attorneys and all involved in this case may be damaged."

Toomin, the presiding judge of the Juvenile Justice Division, is slated to hold his initial status hearing on the matter Friday at the Leighton Criminal Court Building. He could first consider another request by O'Brien to have a judge from outside Cook County decide whether a special prosecutor should be appointed.


O'Brien also filed Monday what she called a "disclosure" in which she said she never decided a case or even worked in the same division with Toomin when both were assigned to the state appellate court in Chicago from 2008 to 2010.

"Judge Toomin and I are not social friends, have never shared a meal together, nor do we communicate in any way," she wrote. "Judge Toomin is a well-respected member of the Chicago legal community and I know of him by reputation, not by personal knowledge."

Toomin, 81, has been on the bench for nearly 40 years, much of it at Leighton, the county's main criminal courthouse at 26th Street and California Avenue. Since 2010 he has presided over the Juvenile Justice Division, the courthouse on the Near West Side that deals with minors charged with crimes.

O'Brien sought the special prosecutor soon after Foxx faced fierce criticism when her office dismissed the charges against Smollett with little explanation less than a month after he was indicted.


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