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Retired Judge Has Fought to Shed Daylight on Jussie Smollett Case

The opinions expressed by columnists are their own and do not necessarily represent the views of

With that noose of fresh white clothesline draped around his neck like a silk scarf, the TV actor and Obama White House entertainer Jussie Smollett had finally achieved the look he was going for:


That difficult casual-yet-determined MAGA-hate-crime victim look.

"Do you want to take it off or anything?" a Chicago cop asks Smollett about the noose on a police video.

"Yeah," Smollett says. "I do. I just wanted y'all to see it."

We saw it, Jussie.

Smollett is now the poster child for Chicago's social justice warrior, Cook County State's Attorney Kim Foxx, and her obsequious deference to the Obama Celebrity Friends who wanted to help Smollett.

Smollett was a Democratic and media hero for a time, telling the saga of how he fought off those racist, homophobic, Trump-loving thugs — with a tuna sandwich in one hand and his cellphone in the other.

It all began to unravel when the thugs turned out to be those Nigerian bodybuilder friends of his, the Osundairo brothers, and Smollett was charged with 16 counts of faking a hate crime.

Foxx dropped the charges the Chicago Way, but now a special prosecutor will be named to investigate not only Smollett but also Foxx herself and how she handled things.

And that's dangerous, if the prosecutor is a nobody whom a nobody sent.

Retired state appellate Judge Sheila O'Brien is the one person who made sure a special prosecutor will investigate Foxx's disastrous handling of the case.

O'Brien deserves the thanks of every taxpayer in Cook County. She petitioned the court for a special prosecutor and fought for it, fending off political pressure that is considerable in a town determined to build a $500 million temple of love and adoration to the Obamas. O'Brien refused to buckle.


She explained it all on "The Chicago Way," the podcast I co-host with WGN-radio producer Jeff Carlin.

"When I heard that the charges had been dismissed and that the court file had been sealed, that's when my hair caught on fire," O'Brien said. "That's when I said, 'Uh-oh.'

"I was visiting a friend in the hospital, a former judge, a former state's attorney who is married to a state's attorney, a woman who was so sick — yet so upset about what happened because she took great pride in being a prosecutor — and walking home from the hospital, I said, 'I've got to do something.'"

When she got home, O'Brien, who had spent 26 years as a judge, began writing a letter to the Chicago Tribune about the need for a special prosecutor in a case that was full of conflicts of interest.

And that began her court fight with Foxx, who opposed a special prosecutor. Foxx lost.

Seeing Smollett revealed as a cheesy bad actor isn't really big news. It doesn't tell us much about America or about Chicago, often described as the most American of all cities.

But what would tell us something is what a special prosecutor in the case may determine, by putting Foxx and her people under oath before a grand jury, to find out if Foxx succumbed to political influence before she inexplicably dropped all charges against Smollett.


That would tell us much. The focus must be on Foxx, not Smollett.

Added focus should be placed on the Obama Celebrity Friend who quietly contacted Foxx on Smollett's behalf. Tina Tchen, powerhouse lawyer who had been chief of staff to first lady Michelle Obama when Smollett performed at the Obama White House.

I'd like to see the special prosecutor sending out subpoenas for Foxx's phone records, including all calls, texts, and communications among Foxx and the Obamas and their friends.

Isn't being thorough a good thing?

The politics is one thing. The law is another. And Foxx's clumsy handling of both has raised red flags.

One flag is Foxx's decision to blame much of her problems — including the fiasco of Foxx's non-recusal recusal — on her chief ethics officer, April Perry, who came from the U.S. attorney's office.

After she'd talked with all those political friends of special people, Foxx didn't want to give up control of the case. Her office told me that she hadn't recused herself in the legal sense, but rather "in the colloquial sense."

How many Pinocchios is that worth? And Foxx blames Perry?

"If you apply a political filter to this, you say, 'Wait!'" Judge O'Brien said. "[Foxx is] throwing your employee under the bus? And this employee is a former United States attorney? And probably still has friends with the U.S. attorney's office that is still investigating Jussie Smollett? Hello? What is happening here?"


"It doesn't wear well when you throw your employees under the bus. Step up. You've got the big desk and the big title. Step up and say, 'The buck stops here.' That's my sense of it. I was disappointed. And I think many Chicagoans are disappointed."

Perry is the first person a special prosecutor should visit, perhaps with some baked goods in hand.

"Exactly," O'Brien said. "And a subpoena."

It's a Chicago neighborhood thing. You never go empty-handed to visit someone like a potential witness. You always bring something, like a poppy seed coffee cake or perhaps a nice tray of bacon buns, along with that subpoena.

It's like that police officer asking Smollett if he wanted to take off his noose. It's the polite thing to do.

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