Cook County Circuit Judge Michael Toomin named a special prosecutor to investigate why State's Attorney Kim Foxx's office dropped all charges alleging the "Empire" television series actor made up the attack to promote his career. Toomin has not filled the position, nor set a date for the next hearing in the case.
In the motions filed Friday, Smollett's defense attorneys contended the case has been "a travesty of justice." "Not only have the media and the public failed to critically look at the evidence (and lack thereof) against Mr. Smollett, but now, (Toomin) has accepted false media reports to presume Mr. Smollett guilty of charges which he pled not guilty to and which were dismissed against him," the motion states.
The motions call for the judge to either drop the special prosecutor appointment, or to limit the scope of the investigation to "potential misconduct" and not allow a do-over of the hate crime investigation.
In addition to challenging the decision for a special prosecutor, defense attorneys asked that Toomin be removed from the case, contending he is biased. The case began in January with Smollett's allegations he was the victim of a racist and homophobic attack. He was eventually arrested on charges he lied to police and instead staged the attack with the help of brothers Abimbola and Olabinjo Osundairo, whom police said he agreed to pay $3,500. Prosecutors in March dismissed the charges .
When deciding to appoint a special prosecutor, Toomin asserted Foxx didn't have the authority to put her top deputy in charge of the Smollett case after she recused herself.