Judge: Foxx’s of­fice can keep its pri­vate lawyers in Smol­lett probe

Chicago Tribune (Sunday) - - CHICAGOLAN­D - By Me­gan Cre­peau mcre­peau@chicagotri­bune.com

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 long­shot 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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