In his opinion, Presiding Judge Michael Toomin took issue with the Cook County State’s Attorney, Kim Foxx, for her handling of the criminal case after her recusal. Specifically, he argues that Foxx’s appointment of her deputy to investigate the case essentially rendered the state’s prosecution nonexistent, as her deputy did not have legal authority to pursue the case. Foxx ultimately dropped charges against Smollett following his mandated community service and bail forfeiture. Foxx’s office is also under investigation by the FBI and Department of Justice.
Foxx’s recusal cited contact via text messages with one of Smollett’s family members when the case was initially investigated as a hate crime-based assault. However, the Tribune also reported that internal communications at Foxx’s office, obtained by FOIA request, indicated that the recusal may also have partly resulted from false rumours that she is related to Smollett.
Although charges were dropped by Foxx’s office, the special prosecutor will have the ability to recharge Smollett with a crime as a result of their investigation. Smollett is also currently facing a defamation lawsuit from the Osundario brothers, who may be accomplices in Smollett’s case. Additionally, the city of Chicago is also suing Smollett for the cost of police overtime that arose from the initial criminal investigation.
Foxx was elected to Chicago’s top prosecutor role in 2016, becoming the city’s first black woman to obtain the position. She campaigned on her background as a resident of the troubled Cabrini-Green housing development (which has since been demolished), as well as her promise to hold Chicago police accountable for criminal activity in connection with the shooting death of Laquan McDonald. Foxx is up for re-election in 2020.