Former "Empire" star and self-described hate-crime victim Jussie Smollett went back to court Friday seeking to protect himself – and Cook County State's Attorney Kim Foxx –from being investigated by a special prosecutor.
Tina Glandian, one of Smollett's team of Los Angeles lawyers, filed a series of motions in Cook County, including a lengthy brief seeking to overturn a judge's order last month appointing a special prosecutor to investigate the March decision by Foxx's office to drop 16 felony charges against Smollett. He had been accused of disorderly conduct for filing false police reports about being the victim of a hate crime.
The documents make clear that Smollett, 37, is still proclaiming his innocence and exoneration. (He wasn't exonerated, he was just not prosecuted.) Smollett continues to blame two Chicago brothers, his former personal trainers, for attacking him and then lying to avoid prosecution by telling police Smollett himself staged the attack.
"This case has been a travesty of justice and an unprecedented deprivation of Mr. Smollett's constitutional rights, including the presumption of innocence and the right to a fair trial," Glandian's brief asserts.
She said Cook County Judge Michael Toomin – who ruled that Foxx had mishandled the Smollett case and appointed a special prosecutor to investigate her and possibly refile charges against Smollett – improperly "accepted false media reports to presume that Smollett was guilty" of the charges in making his decision.
Smollett is seeking to have that decision reconsidered, on the grounds that the judge had no authority to unilaterally reverse the dismissal of the case against him and then go on to appoint a special prosecutor to potentially "further prosecute" Smollett.
If Smollett is successful in intervening in nullifying the judge's order, it could help Foxx, who also is opposed to being investigated by a special prosecutor over the Smollett case.
Foxx and her office are already under investigation by the Cook County inspector general's office; another embarrassing probe could be inconvenient just as she and her prosecutors are preparing to try another celebrity, singer R. Kelly, on multiple sex-crime charges.
The bottom line is that the Smollett scandal is not over and the legal battles it spawned in Chicago continue to roil the city's judicial system.
To recap: In late January, Smollett claimed he was attacked in downtown Chicago in the middle of the night by two masked men who used racist and homophobic slurs (Smollett is black and gay), tied a noose around his neck and poured bleach on him. In March, Chicago police arrested and detained two men, Abimbola "Abel" Osundairo and Olabinjo "Ola" Osundairo, in connection with Smollett's report.
Two days later, police reversed their previous declarations that Smollett was a "victim" and declared he had hired the Osundairo brothers, his personal trainers, to stage the attack to help promote his career and prompt a salary increase. Smollett pleaded not guilty to a 16-count indictment.
Nine days later, Foxx's office (she had recused herself due to contact with his family, she said) announced the charges were being dropped and he would pay a $10,000 fine. Prosecutors argued the outcome was consistent with how such cases are typically handled.
Outrage from the mayor, the police chief, police unions, state prosecutors, media pundits and scores of citizens erupted in Chicago, directed against Foxx and Smollett. Soon a former state appellate judge, Sheila O'Brien, was writing op-ed columns and filing motions calling for a special prosecutor to investigate Foxx. That led to hearings and the decision by Judge Toomin on June 21.
Glandian argues the judge erred in interpreting the law involved. She also works to deconstruct the police "evidence" against Smollett, pointing out instances where they either lied or "misspoke."
And she heaps scorn on the Osundairo brothers. At one point during the Smollett investigation, they issued a statement claiming they were not "homophobic." Glandian argues they lied, citing text messages only a few weeks before the Smollett encounter that "demonstrate a strong homophobic sentiment by both brothers" because they referred to a gay man as a "fruit."
"Other than the Osundairo brothers’ self-serving statements which resulted in their release from custody with no criminal charges filed against them, not a single piece of evidence independently corroborates their claim that the attack was a hoax,” Glandian argued. "Moreover, the actual evidence demonstrates that the Osundairo brothers lied to police and were acting with at least one other person who was not Mr. Smollett."
There was no immediate response from Gloria Schmidt, the Chicago lawyer for the Osundairo brothers. In April, the brothers filed a federal lawsuit against Smollett's legal team, including Glandian, accusing the lawyers of defaming them.
Meanwhile, Smollett is being sued by the city of Chicago seeking to force him to fork over a fine of up to $390,000 for police overtime in the investigation of the case. Smollett, who has vowed not to pay a dime, is seeking to move the suit to federal court, arguing that federal court is the proper venue because the actor is a California resident.
Smollett is no longer a star on "Empire." He was dropped from the final two episodes of the show last spring, and creator Lee Daniels has said he will not return for the show’s final season.
This article originally appeared on USA TODAY: Jussie Smollett fights special prosecutor who might refile charges