Request For Special Prosecutor In Smollett Case Transferred To Another Judge

CHICAGO (CBS) -- Cook County Presiding Criminal Court Judge Leroy Martin has transferred a request for a special prosecutor to investigate State's Attorney Kim Foxx's handling of the Jussie Smollett case to another judge, citing the need to avoid the appearance of impropriety after concerns were raised about the fact his son works in Foxx's office.

Last week, retired appeals court judge Sheila O'Brien asked Martin to recuse himself from ruling on her petition for a special prosecutor in the Smollett case, arguing there was a potential conflict of interest because Martin's son works for Foxx, who has faced questions about her office's decision to drop criminal charges against Smollett.

On Friday Martin stressed that his son has never worked on the Smollett case, noting his son works in the juvenile division of Foxx's office and has never appeared in criminal court.

After noting the Smollett case has garnered intense public interest, Martin said he would transfer the request for a special prosecutor to Juvenile Court Presiding Judge Michael Toomin. Martin stressed he was not recusing himself from the case because he was not legally required to and worried doing so would a precedent that he has to recuse himself in any case involving Foxx's office.

"Legally I don't think this meets the criteria of recusal," Martin said.

Toomin will hear the request for a special prosecutor next week at the Leighton Criminal Courthouse.

Cook County prosecutors have argued O'Brien's request that Martin recuse himself was just an effort to distract from a flawed request for a special prosecutor.

Assistant State's Attorney Mark Rotert last week said O'Brien knows she can't win her petition for a special prosecutor, so she is trying to misdirect by bringing up Martin's son.

Foxx has opposed O'Brien's request for a special prosecutor, saying she has already invited the Cook County inspector general's office to review her actions in the Smollett case, and a special prosecutor wouldn't be needed because there is "no actual conflict of interest."

In her petition for a special prosecutor, O'Brien 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."

Smollett is accused of staging his own racist and homophobic attack and filing a false police report. Just weeks after he was charged, Foxx's office dismissed the case.

O'Brien also has subpoenaed Foxx and Smollett to appear in court for her request, but both are fighting those subpoenas.