CHICAGO (CBS) — A retired judge is asking for a special prosecutor to be appointed and look into State’s Attorney Kim Foxx’s handling of the Jussie Smollett case.

In paperwork filed with the clerk, Smollett is asked to be present in court Thursday, but his publicist said he won’t be.

Judge Leroy Martin Jr., the presiding judge of the Cook County Criminal Division, is expected to hear a petition Thursday morning asking for the outside special prosecutor.

The judge’s son works in Foxx’s office as an assistant state’s attorney, according to his own LinkedIn.

“I think it is a problem,” said CBS 2 legal analyst Irv Miller. “She’s the son’s employer. She controls his son’s pay, promotions. That’s why there is an appearance of impropriety.”

In the petition filed by former judge Sheila O’Brien, she writes that she “does not know Kim Foxx, the State’s Attorney of Cook County and has no vendetta against her or the state’s attorney’s office.”

The actor is accused of staging his own racist and homophobic attack and filing a false police report.

Then just weeks later charges were dropped by Foxx’s office in a surprise hearing.

On Tuesday Foxx responded to the request for a special prosecutor with petitions of her own, saying she has already invited the office of the inspector general to review her actions in the Smollett case, and a special prosecutor wouldn’t be needed because there is “no actual conflict of interest.”

O’Brien also requested that Smollett be in court Thursday. His attorneys call the request an undue burden since Smollett lives in California and would require security.

Smollett’s publicist said he will not be in court, but it is unclear if Foxx will be.

Charlie De Mar