CHICAGO (CN) — Almost two years after Jussie Smollett was convicted of criminal disorderly conduct for staging a bogus hate crime on himself, the actor on Tuesday asked the Illinois state appellate court to overturn that conviction — or, failing that, to secure a new trial with a new judge.
The thrust of Smollett's attorneys' arguments to the appellate panel was that he is a victim of double jeopardy, when an individual is unconstitutionally prosecuted more than once for the same crime. But even if he isn't, the attorneys claimed, the Cook County judge presiding over Smollett's case conducted his December 2021 trial in a fundamentally unfair manner.
Smollett's lead attorney Nenye Uche went even further, claiming Smollett was doubly punished not because of any specific legal scheme, but because of the public's reaction to his supposed hoax.
"Public outrage against the defendant can not overrule the rule of law," Uche told the three-justice appellate panel.
The events leading to Tuesday's hearing began in January 2019, when the young, gay Black actor, then the star of the TV series "Empire," told Chicago police he had been jumped late at night in Chicago's wealthy Streeterville neighborhood by two men wearing MAGA hats.
Smollett said the two apparently white men — they were wearing masks so it was hard to tell — roughed him up, called him homophobic and racist slurs, sprayed bleach on his clothes and draped a noose around his neck.
After investigating the claims, police concluded they had been sent on a wild goose chase. Smollett had set up the incident himself, they claimed, and the two men who jumped him were actually Abimbola and Olabinjo Osundairo, two Nigerian-American brothers with whom Smollett had worked and then paid to stage the attack.
In March 2019 a Cook County grand jury indicted Smollett on 16 criminal disorderly conduct charges for supposedly staging the hoax, only for Cook County State's Attorney Kim Foxx to drop the charges later that month. Unsatisfied, retired Illinois appellate judge Sheila O’Brien filed a petition with the Cook County Criminal Court in May 2019 saying Foxx’s actions seemed suspicious and that she believed Smollett had played the legal system.
Cook County Judge Michael Toomin, who is now deceased, ultimately agreed and appointed private attorney Dan Webb of the Chicago law firm Winston & Strawn to act as a special prosecutor. Under Webb, a second grand jury indicted Smollett on six new criminal disorderly conduct charges in February 2020.
Jurors convicted Smollett on five of those charges in December 2021.
Cook County Judge James Linn sentenced Smollett to 30 months of probation in March 2022, including 150 days in Cook County Jail. So far, the former star has served less than a week of that sentence, thanks to an appellate court order keeping him out of jail while his appeal is pending.
Uche and Heather Widell, another attorney for Smollett, opposed the apparent mulligan the state was allowed to take regarding the actor's charges.
That Smollett had to forfeit a $10,000 bail bond and perform community service, in exchange for Foxx declaring his initial case nolle prosequi, should be considered a form of punishment that bars further prosecution per double jeopardy rules, the lawyers argued Tuesday.
"If someone gives up his property in exchange for an agreement of dismissal and then the case is brought back, we consider that fundamentally unfair," Uche said.
Uche cited the 1985 Illinois Supreme Court case People v. Starks to support his argument.
In Starks, state prosecutors agreed to drop armed robbery charges against a man named Ronnie Starks if he could pass a polygraph test while stating he didn't commit any robbery. Starks passed the polygraph, but the prosecutors reneged on their end of the deal. A jury convicted Starks at trial, but upon review the state supreme court ruled prosecutors had to abide by any legitimate deal they had made with him. The lower court ended up dismissing Stark's charges per the high court's decision.
Uche drew parallels between Starks and Smollett, lambasting the state for resurrecting the actor's case after he and Foxx had already reached an agreement to settle it.
"We don't care if you think, on reflection, this deal wasn't good enough," Uche said. "We care about the rule of law."
Widell's arguments on Smollett's behalf, meanwhile, focused on what the defense considered the improper handling of the case by Webb's legal team and Judge Linn. She argued it was inappropriate for Toomin to appoint Webb's team to act as special prosecutors, given that the state's attorney's office had already chosen to drop the case, and criticized Linn for preventing the defense team from accessing the contents of an hourslong interview Webb’s office held with the Osundairo brothers.
Widell said Smollett's attorneys should have been granted access to this interview given the centrality of the Osundairo brothers to the case. That they weren't, she claimed, unfairly hurt Smollett's chances at trial.
"The court simply took the word of the special prosecutor that these interviews were simply work product," Widell said, later adding, "There was an hourslong interview of the brothers, and Judge Linn never even conducted an in-camera review of these notes."
During the special prosecutor's own arguments, Webb's colleague Sean Wieber separated Smollett's 2019 and 2020 indictments. He claimed the appellate court had no jurisdiction over the former, which would render moot the defense's double jeopardy arguments regarding the latter.
"This court does not have the jurisdiction to sit on orders from [the 2019] case," Wieber said.
But even if it does, Wieber continued, a nolle prosequi decision from the state's attorney's office is not the same as a final dismissal, and should not bar prosecution in a new case.
"If you look at the record, what Mr. Smollett bargained for and what he got was a nolle pros... He did not bargain for or receive finality," Wieber said.
And finally, Wieber argued that even if Linn made a mistake by not admitting the Osundairo brothers' interview, there was still an overwhelming amount of evidence presented at trial that demonstrated Smollett's guilt. He noted that the Osundairo brothers themselves had a long run on the witness stand during the 2021 trial.
"The brothers... were cross-examined for days," Wieber said.
The panel of appellate justices who heard the arguments did not say when they would issue a decision.
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