CHICAGO -- At first blush, the criminal cases against Jussie Smollett and Harry "The Hook" Aleman would seem to have little in common.
One involves a minor celebrity who gained international notoriety for allegedly staging a hoax hate crime on himself. The other was a shadowy Outfit enforcer who twice stood trial for the 1972 gangland slaying of a union steward.
But even though Aleman's decidedly more serious case unfolded decades -- and worlds -- apart from Smollett's, it now provides an intriguing look at the legal pathway prosecutors might use to block Smollett's attempts to get the new charges against him thrown out of court on double-jeopardy grounds.
And linked to both cases is the same Cook County judge -- Michael Toomin.
In 1997, Aleman became the first defendant in U.S. history to be retried on murder charges after having been acquitted at trial. In a landmark decision, Toomin ruled that the Constitution's double-jeopardy protections didn't apply to Aleman because the original judge had been bribed.
Fast-forward 23 years, where there promises to be a legal fight over whether new disorderly conduct charges filed against the actor Tuesday violate those same double-jeopardy protections. Lawyers for Smollett are expected to argue the new charges represent prosecutors unfairly taking another bite of the apple, as the actor first was charged last year in a case that eventually was dropped amid controversy.
But legal experts told the Tribune that defense argument is likely to fail, and point to Aleman's case as Exhibit A.
In ordering a special prosecutor in the Smollett case last summer, Toomin echoed what he'd said in the Aleman case, ruling that since State's Attorney Kim Foxx had not properly recused herself from the investigation, the entire case was essentially invalid from start to finish. Prosecutors could use the ruling to argue there was never any real legal jeopardy for Smollett in the first place.
"That first (Aleman) trial was a sham trial because he really wasn't in jeopardy, the case was fixed," said K.S. Galhotra, a former supervisor in the Cook County public defender's office now in private practice. "This is sort of along those lines ... because Judge Toomin said it was a void prosecution, the case can begin anew."