Kim Foxx, Jussie Smollett case: Judge steps aside, won't make special prosecutor decision

The Cook County judge set to decide whether a special prosecutor should be appointed to investigate why charges were dropped against "Empire" actor Jussie Smollett stepped aside Friday, saying he would allow another judge to rule on the controversial case.

Judge LeRoy Martin Jr. said he wasn't recusing himself but instead transferring the matter to Judge Michael Toomin, a jurist with decades of experience.

“I am not unmindful that the appearance of justice is important,” Martin said. “I think it is prudent and wise that I transfer the matter.”

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Last week, Sheila O’Brien, a former state appellate judge who is pushing for the special prosecutor, filed a petition demanding Martin recuse himself and assign the case to a judge outside Cook County. Martin's son, Leroy Martin III, is an assistant state's attorney who has worked under Foxx for more than a year. He was hired in April 2018.

"You're going to be deciding whether [Foxx], your son's boss, is telling the truth," O'Brien told Martin.

State's Attorney Kim Foxx's office has come under fire for its handling of the Smollett case. Foxx has publicly said she'd welcome an independent probe into her office's decision to dismiss a 16-count indictment against Smollett, who is accused of staging a hate crime on himself.

However, Foxx's office filed a motion opposing the call for a special prosecutor made by O'Brien. Her office filed two other motions as well. One seeks to quash subpoenas for Foxx and her top assistant, Joseph Magats, and prevent O'Brien from requesting additional subpoenas. The other seeks the court's permission to allow Foxx's office and the county inspector general access to records that were sealed at the same hearing where prosecutors dropped all charges against Smollett.

The decision to drop the charges during an unannounced March hearing sparked outrage from the Chicago Police Department as well as outgoing Mayor Rahm Emanuel who blasted the move as a "whitewash of justice."

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President Trump also weighed in on the case, calling it "an embarrassment to our nation" in a March 28 tweet.

O'Brien's petition calls out Foxx's handling of the case for saying she recused herself in the early stages of the investigation because she was in contact with a family member of Smollett only to claim recently that her recusal was not a recusal "in the legal sense" which would have required her entire office to withdraw from the prosecution.

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O'Brien claims Foxx's comments and actions created "a perception that justice was not served here, that Mr. Smollett received special treatment."

Smollett, meanwhile, has denied all of the charges against him.