Jussie Smollett’s lawyers filed a motion on Friday to overturn the appointment of a special prosecutor in his hate crime hoax case, arguing the appointment would expose the “Empire” actor to double jeopardy.
Smollett is seeking to reverse an order issued last month by Judge Michael Toomin, who faulted Cook County State’s Attorney Kim Foxx for failing to recuse her office from the hot-button case.
The motion is the latest turn in a see-saw prosecution that began on Jan. 29, when Smollett claimed he was ambushed by two men who beat him, yelled homophobic and racial slurs, poured bleach on him and put a noose around his neck. The assault generated nationwide attention and sympathy, only for Chicago detectives to conclude that Smollett had in fact paid the two men, one of whom was his personal trainer, to stage the attack.
Smollett was indicted on 16 counts of filing a false police report. But the State’s Attorney’s office quickly dropped the charges in exchange for the forfeiture of a $10,000 bond. The deal allowed Smollett to maintain his innocence, and led to outrage and allegations of favoritism.
Last month, Judge Michael Toomin ruled that State’s Attorney Kim Foxx had mishandled the case, and should have turned it over to another prosecutorial agency. Citing “unprecedented irregularities” and vowing to restore public confidence in the justice system, the judge ordered the appointment of a special prosecutor, who would have the power to refile the charges against Smollett.
In a motion for reconsideration filed on Friday, Smollett’s attorney Tina Glandian pushed back on the order, challenging Toomin’s apparent conclusion that Smollett is guilty. She argued that the two men — Abimbola and Olabinjo Osundairo — attacked Smollett, and then blamed him once they were caught.
“Other than the Osundairo brothers’ self-serving statements which resulted in their release from custody with no criminal charges filed against them, not a single piece of evidence independently corroborates their claim that the attack was a hoax,” Glandian argued.
She floated the idea that the brothers were motivated by homophobia, citing text messages in which Olabinjo referred disparagingly to another man as a “fruit.”
Glandian also argued that the judge erred by appointing a special prosecutor, saying that Foxx was within her rights to turn over the case to her top assistant. Even if the recusal were mishandled, she argued, the state should not get a “do-over” once a court has agreed to dismiss the charges.
The City of Chicago is also suing Smollett in civil court to recoup the overtime costs of its investigation.
Smollett was dropped from the final two episodes of “Empire” last spring, and creator Lee Daniels has said he will not return for the show’s final season.