Jussie Smollett update: Judge asked to recuse himself from petition to appoint special prosecutor in 'Empire' actor's case

CHICAGO (WLS) -- A retired judge who filed a petition to appoint a special prosecutor to investigate Cook County State's Attorney Kim Foxx's handling of the Jussie Smollett case asked a Cook County judge to recuse himself from the case at a hearing Thursday.

Retired Illinois Appellate Court Justice Sheila O'Brien argued Judge LeRoy Martin Jr. should recuse himself in the case because Kim Foxx can hire and fire his son, who works for the state's attorney's office. She is asking for a judge from outside the county to ensure this process is fair.

WATCH: Timeline of key moments in Jussie Smollett case
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"Empire" actor and R&B singer Jussie Smollett told Chicago police last month that two men physically attacked him and yelled racial and homophobic slurs. There have been dozens of twists and turns since then. Here are some key moments from the start of this story.



Judge Martin called it troubling that his family is being brought into this and at times got into heated exchanges with O'Brien, who at one point suggested to the judge that he should recuse himself and "take the higher ground."

The State is arguing that there's no evidence that the judge would be biased if Kim Foxx had to take the stand.

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Locke Bowman of Northewestern University Pritzker School of Law said O'Brein's request for recusal is puzzling.

"Assistant State's Attorneys appear for him in matters many times a day, every day of the week," Bowman said. "There's typically no suggestion that because of his son's involvement with the State's Attorney's Office that his judgment is impaired."

"Special prosecutors are appointed to investigate crimes and as far as I'm aware there is no evidence or reason to believe that State's Attorney Kim Foxx or anyone in her office engaged in any remotely criminal conduct," Bowman added.

Foxx was not in court Thursday. Neither was Smollett, who now lives in California.

The hearing Thursday was held on O'Brien's petition to appoint a special prosecutor to look into Foxx and her office's handling of the controversial Jussie Smollett case.

The Cook County state's attorney's office dropped all charges against the actor on the show "Empire" after police maintained he staged a homophobic and racist attack on himself back in January.

RELATED: City sues Jussie Smollett for cost of investigating alleged staged attack

Foxx recused herself from the case for a potential conflict of interest, but critics remain suspicious that she may have used her influence to make sure the charges were dropped.

Judge Martin said he will take the suggestion to recuse himself under consideration. All parties will be back in court next Friday.

Meanwhile, Kim Foxx was not in court and neither was Smollett, who has moved out of Chicago to California.

The TV actor claimed he was the victim of a vicious hate crime in the Streeterville neighborhood on January 29. He said two men physically attacked him while yelling racist and homophobic slurs, threw a chemical liquid on him and looped a rope around his neck.

Two days after the alleged attack, Chicago police released surveillance images of two people they said they considered persons of interest in the attack.

But the investigation turned on Smollett. He was accused of allegedly orchestrating the attack with the Osundairo brothers, who he knew. One brother was an extra on "Empire" and the other was Smollett's personal trainer.

Prosecutors said Smollett paid the brothers to pull off the staged attack.

Smollett had also reported a threatening letter sent to him on the "Empire" set containing a white powder, a week before the alleged attack. The letter is currently in the FBI crime lab for analysis, sources said, and experts believe Smollett could face federal charges for allegedly sending the letter.

All charges against Smollett were dropped in late February in exchange for community service and forfeiture of his $10,000 bond payment.

Smollett has maintained his innocence. The City of Chicago is suing the actor for the costs of the investigation and damage to the city's reputation.

Previous coverage:
Jussie Smollett: 'Empire' actor's contract extended, no plans for character to return
Jussie Smollett News: Osundairo brothers file defamation lawsuit against 'Empire' actor's attorneys
Kim Foxx receives death threats after Jussie Smollett charges dropped
Kim Foxx texts show she thought number of Jussie Smollett charges 'excessive'
Cook County State's Attorney Kim Foxx asks for review of how Jussie Smollett case was handled
Jussie Smollett update: City sues 'Empire' actor for cost of investigating alleged staged attack
Jussie Smollett attorney responds to Chicago's civil suit threat
Chicago to file civil suit against 'Empire' actor for not paying $130K cost of police investigation
In wake of Jussie Smollett, suburban police chiefs take no confidence stance against State's Attorney Kim Foxx
Jussie Smollett case leads to protests for, against Cook County State's Attorney Kim Foxx
Jussie Smollett update: Thousands referred for alternative prosecution by Cook County prosecutors haven't completed process
Jussie Smollett update: City of Chicago asks Jussie Smollett to pay for $130,000 cost of investigation
Jussie Smollett update: What's inside the CPD investigative file?
Jussie Smollett update: FBI reviewing circumstances of Jussie Smollett's charges being dropped, sources confirm
Jussie Smollett update: Charges against 'Empire' actor dropped; 'not an exoneration,' prosecutor says
RELATED: Mayor Emanuel calls decision to drop charges against Smollett 'whitewash of justice'
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