CHICAGO (CBS) — Former U.S. Attorney Dan Webb has been appointed as a special prosecutor to investigate the Cook County State’s Attorney’s office decision to drop disorderly conduct charges against “Empire” actor Jussie Smollett, who had been accused of orchestrating a fake hate crime against himself.
Judge Michael Toomin announced Webb’s appointment as special prosecutor at a hearing Friday morning at the Leighton Criminal Courthouse.
Webb said he and his firm, Winston & Strawn, are handling the case for free, and will not charge Cook County any fees.
“We are going to do the entire matter, start to finish, pro bono,” he said.
Dan Webb Sworn in as special prosecutor.
The probe will determine 3-things.
1. Investigate any person or office involved who engaged in wrongdoing
2.Determine if there are reasonable grounds to further prosecute Jussie Smollett.
— Charlie De Mar (@CharlieDeMar) August 23, 2019
Toomin ruled two months ago that a special prosecutor was needed in the case, due to “unprecedented irregularities” in how Cook County State’s Attorney Kim Foxx handled the case, specifically by handing it over to her second-in-command after announcing she had recused herself.
The judge said Foxx had no authority to appoint someone to take over the case for her, so every decision her office made — from charging Smollett, to indicting him, to ultimately dismissing the case — was invalid.
Webb not only will investigate how Foxx’s office handled the case, but determine whether Smollett should be further prosecuted for allegedly staging a hoax hate crime.
Webb said he’s essentially starting the investigation of the whole case over from scratch.
“I’m starting this thing fresh today. I am not going to accept any view of this case whatsoever from anybody. I have to examine the evidence. I’ve got to make decisions out of fairness, based on what the evidence says. I’m going to start fresh and see where it goes,”
Foxx’s office said it would cooperate fully with Webb’s investigation.
Webb said he expects to impanel a grand jury as part of his probe.
In 2012, Toomin also appointed Webb, a prominent defense attorney and former U.S. Attorney for Chicago, as a special prosecutor in the 2004 death of David Koschman, at the hands of Richard R.J. Vanecko, a nephew of former Mayor Richard M. Daley.
Vanecko punched David Koschman, 21, of Mount Prospect, in the face in a drunken confrontation early on April 25, 2004, outside the late-night bars along Division Street. Koschman fell, hit his head on a curb and died 11 days later of brain injuries without regaining consciousness.
Vanecko ultimately pleaded guilty to involuntary manslaughter, and served 60 days in jail.
Webb also investigated whether clout played a role in the original investigation of Koschman’s death, but his final report on the case concluded there was no evidence Daley or other relatives sought to influence the case.
Before appointing Webb in the Smollett case, Toomin said he reached out to the Illinois Attorney General’s office, the Illinois Office of the State’s Attorney Appellate Prosecutor, and county state’s attorneys in Illinois, and got 30 responses which he called “less than enthusiastic.” Toomin said 27 of those state’s attorneys declined to take the case, one said maybe, and two accepted, but he deemed those offices were not equipped to handle the case.
That’s when he turned to Webb, who has served as a special prosecutor in Cook County six previous times, including the Koschman case.
In ruling for a special prosecutor in the Smollett case, Toomin said Foxx had no authority to hand off the case to her top deputy after announcing she had recused herself from the case because of contact with a relative of Smollett’s before he was charged.
Toomin said Foxx effectively appointed First Assistant State’s Attorney Joseph Magats to a “fictitious” office to serve in her stead.
“What causes concerns is that she appointed him to an entity that had and has no legal existence. There is no office of acting state’s attorney,” he said.
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“Here, the ship of the State ventured from its protected harbor without the guiding hand of its captain. There was no master on the bridge to guide the ship as it floundered through unchartered waters,” Toomin wrote in his ruling.
As a result, Toomin said there effectively was no state’s attorney when Smollett was arrested, charged, indicted, arraigned, and finally when charges later were dropped. So all of those decisions were invalid.
“The unprecedented irregularities identified in this case warrants the appointment of independent counsel to restore the public’s confidence in the integrity of our criminal justice system,” he wrote.
The brothers’ attorneys have acknowledged they took part in a hoax, but said they have apologized for it, and only did so because Smollett paid them.
Police have said Smollett — who is black and openly gay — orchestrated the fake hate crime because he was upset with his salary on “Empire.”
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Investigators said the two brothers wore gloves during the staged attack, and did punch Smollett, but the scratches and bruises on Smollett’s face most likely were self-inflicted.
Smollett has denied all the allegations, and his attorneys have claimed he was exonerated when Foxx’s office dropped the charges.
Foxx previously said she recused herself from the case after having conversations with one of Smollett’s relatives before he was charged with disorderly conduct.
After Magats took over the case, and prosecutors ended up dropping all charges a month after Smollett was arrested, after the “Empire” actor performed 16 hours of community service, and agreed to forfeit his $10,000 bail, but did not admit guilt.
Hundreds of emails and text messages later released by Foxx’s office showed two weeks before the charges were dropped, Foxx texted her staff, dismissing him as a “washed-up celeb who lied to cops,” and telling them he was being charged too harshly.
Critics have said had Foxx truly recused herself of the case, it would have been handed over to a state’s attorney from a different county.
What about double jeopardy?
Legal experts say that’s not an issue because Smollett was never put on trial in the first place.