Jussie Smollett seeks to stop appointment of special prosecutor

Jussie Smollett’s lawyers filed a motion on Friday to overturn the appointment of a special prosecutor in his hate crime hoax case, arguing the appointment would expose the “Empire” actor to double jeopardy.

Smollett is seeking to reverse an order issued last month by Judge Michael Toomin, who faulted Cook County State’s Attorney Kim Foxx for failing to recuse her office from the hot-button case.

The motion is the latest turn in a see-saw prosecution that began on Jan. 29, when Smollett claimed he was ambushed by two men who beat him, yelled homophobic and racial slurs, poured bleach on him and put a noose around his neck. The assault generated nationwide attention and sympathy, only for Chicago detectives to conclude that Smollett had in fact paid the two men, one of whom was his personal trainer, to stage the attack.

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Jussie Smollett protestors on the streets of Chicago
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Jussie Smollett protestors on the streets of Chicago
CHICAGO, ILLINOIS - APRIL 01: Protestors organized by the Fraternal Order of Police call for the removal of Cook County State's Attorney Kim Foxx on April 01, 2019 in Chicago, Illinois. Foxx has been under fire after her office worked out a deal to drop felony charges against Empire actor Jussie Smollett. (Photo by Scott Olson/Getty Images)
CHICAGO, ILLINOIS - APRIL 01: Protestors organized by the Fraternal Order of Police call for the removal of Cook County State's Attorney Kim Foxx on April 01, 2019 in Chicago, Illinois. Foxx has been under fire after her office worked out a deal to drop felony charges against Empire actor Jussie Smollett. (Photo by Scott Olson/Getty Images)
CHICAGO, ILLINOIS - APRIL 01: Protestors organized by the Fraternal Order of Police call for the removal of Cook County State's Attorney Kim Foxx on April 01, 2019 in Chicago, Illinois. Foxx has been under fire after her office worked out a deal to drop felony charges against Empire actor Jussie Smollett. (Photo by Scott Olson/Getty Images)
CHICAGO, ILLINOIS - APRIL 01: Protestors organized by the Fraternal Order of Police call for the removal of Cook County State's Attorney Kim Foxx on April 01, 2019 in Chicago, Illinois. Foxx has been under fire after her office worked out a deal to drop felony charges against Empire actor Jussie Smollett. (Photo by Scott Olson/Getty Images)
CHICAGO, ILLINOIS - APRIL 01: Protestors organized by the Fraternal Order of Police call for the removal of Cook County State's Attorney Kim Foxx on April 01, 2019 in Chicago, Illinois. Foxx has been under fire after her office worked out a deal to drop felony charges against Empire actor Jussie Smollett. (Photo by Scott Olson/Getty Images)
CHICAGO, ILLINOIS - APRIL 01: Supporters of Cook County State's Attorney Kim Foxx (L) argue with protestors during a demonstration organized by the Fraternal Order of Police to call for Foxx's removal on April 01, 2019 in Chicago, Illinois. Foxx has been under fire after her office worked out a deal to drop felony charges against Empire actor Jussie Smollett. (Photo by Scott Olson/Getty Images)
CHICAGO, ILLINOIS - APRIL 01: Supporters of Cook County State's Attorney Kim Foxx argue with protestors during a demonstration organized by the Fraternal Order of Police to call for Foxx's removal on April 01, 2019 in Chicago, Illinois. Foxx has been under fire after her office worked out a deal to drop felony charges against Empire actor Jussie Smollett. (Photo by Scott Olson/Getty Images)
CHICAGO, ILLINOIS - APRIL 01: Police stand guard as supporters of Cook County State's Attorney Kim Foxx argue with protestors during a demonstration organized by the Fraternal Order of Police to call for Foxx's removal on April 01, 2019 in Chicago, Illinois. Foxx has been under fire after her office worked out a deal to drop felony charges against Empire actor Jussie Smollett. (Photo by Scott Olson/Getty Images)
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Smollett was indicted on 16 counts of filing a false police report. But the State’s Attorney’s office quickly dropped the charges in exchange for the forfeiture of a $10,000 bond. The deal allowed Smollett to maintain his innocence, and led to outrage and allegations of favoritism.

Last month, Judge Michael Toomin ruled that State’s Attorney Kim Foxx had mishandled the case, and should have turned it over to another prosecutorial agency. Citing “unprecedented irregularities” and vowing to restore public confidence in the justice system, the judge ordered the appointment of a special prosecutor, who would have the power to refile the charges against Smollett.

In a motion for reconsideration filed on Friday, Smollett’s attorney Tina Glandian pushed back on the order, challenging Toomin’s apparent conclusion that Smollett is guilty. She argued that the two men — Abimbola and Olabinjo Osundairo — attacked Smollett, and then blamed him once they were caught.

“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.

She floated the idea that the brothers were motivated by homophobia, citing text messages in which Olabinjo referred disparagingly to another man as a “fruit.”

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'Empire' star Jussie Smollett during court appearances
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'Empire' star Jussie Smollett during court appearances
Empire actor Jussie Smollett arrives a news conference after a hearing at the Leighton Criminal Court Building Tuesday, March 26, 2019, in Chicago. Smollett attorneys Tina Glandian and Patricia Brown Holmes said in a Tuesday morning statement that Smollett's record "has been wiped clean." Smollett was indicted on 16 felony counts related to making a false report that he was attacked by two men who shouted racial and homophobic slurs. (AP Photo/Amanda Seitz)
Empire actor Jussie Smollett appears with a fan as he walks out of the Leighton Criminal Court Building after a hearing Tuesday, March 26, 2019, in Chicago. Smollett attorneys Tina Glandian and Patricia Brown Holmes said in a statement Tuesday that Smollett's record "has been wiped clean." Smollett was indicted on 16 felony counts related to making a false report that he was attacked by two men who shouted racial and homophobic slurs. (AP Photo/Amanda Seitz)
Actor Jussie Smollett exits courtroom 101 into the hallway at the Leighton Criminal Court Building following an emergency hearing over his disorderly conduct charges on Tuesday, March 26, 2019. (Jose M. Osorio/Chicago Tribune/TNS via Getty Images)
US television actor Jussie Smollett attends Leighton Criminal Court with his attorney Tina Glandian (L) on March 14, 2019, in Chicago. - Smollett pleaded not guilty on Thursday to charges he lied to police about being the victim of a racist, homophobic hate crime. The 36-year-old actor was charged with 16 felony counts last week for allegedly masterminding a false attack to gain publicity and win a bigger paycheck. (Photo by E. Jason Wambsgans / POOL / AFP) (Photo credit should read E. JASON WAMBSGANS/AFP/Getty Images)
CHICAGO, IL - MARCH 14: Actor Jussie Smollett leaves Leighton Criminal Courthouse after his court appearance on March 14, 2019 in Chicago, Illinois. Smollett stands accused of arranging a homophobic, racist attack against himself in an attempt to raise his profile because he was dissatisfied with his salary on the Fox television drama 'Empire.' (Photo by Nuccio DiNuzzo/Getty Images)
US television actor Jussie Smollett attends Leighton Criminal Court with his attorney Tina Glandian (L) on March 14, 2019, in Chicago. - Smollett pleaded not guilty on Thursday to charges he lied to police about being the victim of a racist, homophobic hate crime. The 36-year-old actor was charged with 16 felony counts last week for allegedly masterminding a false attack to gain publicity and win a bigger paycheck. (Photo by E. Jason Wambsgans / POOL / AFP) (Photo credit should read E. JASON WAMBSGANS/AFP/Getty Images)
CHICAGO, IL - MARCH 14: Actor Jussie Smollett (C) leaves Leighton Criminal Courthouse after his court appearance on March 14, 2019 in Chicago, Illinois. Smollett stands accused of arranging a homophobic, racist attack against himself in an attempt to raise his profile because he was dissatisfied with his salary on the Fox television drama 'Empire.' (Photo by Nuccio DiNuzzo/Getty Images)
CHICAGO, IL - MARCH 14: Actor Jussie Smollett arrives at Leighton Criminal Courthouse on March 14, 2019 in Chicago, Illinois. Smollett stands accused of arranging a homophobic, racist attack against himself in an attempt to raise his profile because he was dissatisfied with his salary on the Fox television drama 'Empire.' (Photo by Nuccio DiNuzzo/Getty Images)
CHICAGO, IL - MARCH 14: Actor Jussie Smollett arrives at Leighton Criminal Courthouse on March 14, 2019 in Chicago, Illinois. Smollett stands accused of arranging a homophobic, racist attack against himself in an attempt to raise his profile because he was dissatisfied with his salary on the Fox television drama 'Empire.' (Photo by Nuccio DiNuzzo/Getty Images)
CHICAGO, IL - MARCH 14: Actor Jussie Smollett arrives at Leighton Criminal Courthouse on March 14, 2019 in Chicago, Illinois. Smollett stands accused of arranging a homophobic, racist attack against himself in an attempt to raise his profile because he was dissatisfied with his salary on the Fox television drama 'Empire.' (Photo by Nuccio DiNuzzo/Getty Images)
CHICAGO, IL - MARCH 14: Actor Jussie Smollett arrives at Leighton Criminal Courthouse on March 14, 2019 in Chicago, Illinois. Smollett stands accused of arranging a homophobic, racist attack against himself in an attempt to raise his profile because he was dissatisfied with his salary on the Fox television drama 'Empire.' (Photo by Nuccio DiNuzzo/Getty Images)
Actor Jussie Smollett(C) and team arrive for a court hearing at the Leighton Criminal Courthouse on March 12, 2019 in Chicago. - A Chicago grand jury on March 8, 2019 indicted American actor Jussie Smollett on 16 felony counts after allegedly lying to police about being the victim of a racist, homophobic hate crime. Police say Smollett -- who gained fame on Fox musical drama 'Empire' -- staged the attack in a bid to gain publicity and a bigger paycheck. (Photo by DEREK HENKLE / AFP) (Photo credit should read DEREK HENKLE/AFP/Getty Images)
Actor Jussie Smollett(C) and team arrive for a court hearing at the Leighton Criminal Courthouse on March 12, 2019 in Chicago. - A Chicago grand jury on March 8, 2019 indicted American actor Jussie Smollett on 16 felony counts after allegedly lying to police about being the victim of a racist, homophobic hate crime. Police say Smollett -- who gained fame on Fox musical drama 'Empire' -- staged the attack in a bid to gain publicity and a bigger paycheck. (Photo by Nova SAFO / AFP) (Photo credit should read NOVA SAFO/AFP/Getty Images)
CHICAGO, ILLINOIS - FEBRUARY 21: Empire actor Jussie Smollett leaves Cook County jail after posting bond on February 21, 2019 in Chicago, Illinois. Smollett has been accused with arranging a homophobic, racist attack against himself in an attempt to raise his profile because he was dissatisfied with his salary. (Photo by Nuccio DiNuzzo/Getty Images)
CHICAGO, ILLINOIS - FEBRUARY 21: Empire actor Jussie Smollett (partially obscured) leaves Cook County jail after posting bond on February 21, 2019 in Chicago, Illinois. Smollett has been accused with arranging a homophobic, racist attack against himself in an attempt to raise his profile because he was dissatisfied with his salary. (Photo by Nuccio DiNuzzo/Getty Images)
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Glandian also argued that the judge erred by appointing a special prosecutor, saying that Foxx was within her rights to turn over the case to her top assistant. Even if the recusal were mishandled, she argued, the state should not get a “do-over” once a court has agreed to dismiss the charges.

The City of Chicago is also suing Smollett in civil court to recoup the overtime costs of its investigation.

Smollett was dropped from the final two episodes of “Empire” last spring, and creator Lee Daniels has said he will not return for the show’s final season.

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