CHICAGO (CN) — Former "Empire" star Jussie Smollett filed for an appeal before the high court of Illinois on Monday, hoping to overturn his 2021 conviction on five counts of criminal disorderly conduct.
A three-judge state appellate panel upheld that conviction this past December in a 2-1 vote. In his petition to the state Supreme Court, Smollett argued that the appellate court's majority decision violated the principal of double jeopardy — when one is charged twice for the same offense.
He warned that the appellate court's majority opinion could "overturn binding Illinois Supreme Court and appellate court precedent" if not challenged.
The argument — as with Smollett's entire five-year legal fight in Illinois — stems from an incident in January of 2019 where Smollett said he was jumped late at night by two Donald Trump supporters in Chicago's wealthy Streeterville neighborhood. The openly gay, Black actor said his attackers shouted racist and homophobic slurs at him, draped a noose around his neck and poured bleach on him.
But a subsequent investigation by Chicago police, led by former detective Michael Theis, led authorities to conclude the attack was a hoax Smollett staged on himself with the help of two associates, brothers Olabinjo and Abimbola Osundairo.
For leading police to investigate a bogus hate crime, a Cook County grand jury indicted Smollett on 16 counts of felony disorderly conduct in March of 2019. But those counts were quickly dropped by the State’s Attorney’s Office. It later became public that the Cook County State’s Attorney Kim Foxx dropped the charges because she thought Smollett was a “washed up celeb” who had been over-charged. Smollett also agreed to perform community service and forfeit his $10,000 bail bond in exchange for Foxx not prosecuting the case further.
Unsatisfied, retired state Appellate Court Justice Sheila O’Brien successfully petitioned now-deceased Cook County Judge Michael Toomin to revive the case. Toomin appointed Chicago attorney Dan Webb of the law firm Winston & Strawn as a special prosecutor in August 2019 to investigate alleged wrongdoing on the part of the State’s Attorney’s Office in prosecuting the case, and to determine whether it should be renewed. In February 2020, another grand jury charged Smollett with six new counts of felony disorderly conduct for making false hate crime, battery and aggravated battery reports to several Chicago police officers.
Smollett pleaded not guilty and trial followed in late November 2021. Jurors convicted Smollett on five of the six counts he faced in early December, with Cook County Judge James Linn mandating he pay a $120,000 fine and sentencing him to over two years of probation — including 150 days in jail — in March 2022. So far, the former star has served less than a week of that sentence, thanks to an appellate court order that kept him out of jail while his appeal was pending. He presented his arguments to the appellate court last September.
In his petition to the Supreme Court, Smollett repeats many of the same arguments his attorney Nenye Uche made before the appellate panel in September. He claims that the case should have ended after Foxx dropped the case in a nolle prosequi agreement in 2019, in exchange for his bail bond forfeiture and community service. Its revival on the urging of a retired judge and subsequent re-prosecution, he argues, violated protections against double jeopardy. He also argues the appellate panel's majority opinion could undermine the government's responsibility to honor its plea agreements with citizens.
"The negative impact of the majority opinion on our plea-bargaining system is clear and present," Smollett claims in the petition. "For example, daily, criminal misdemeanor and felony charges around Illinois are dismissed via a nolle prosequi, after an informal agreement for the defendant to complete independent community service has been fully performed. Those cases, save for any statute of limitations, are at risk with the majority opinion."
Smollett's petition arguments lean heavily on the dissent of Appellate Justice Freddrenna Lyle, whom Smollett praised in his Supreme Court filing as being "consistent with nearly a century of Illinois and American appellate courts enforcing agreements that have been fully performed by a defendant to the state’s benefit."
The only Black justice to hear Smollett's appeal, Lyle agreed that it wasn't right for the state to take a second swing at him after one of its own prosecutors decided to drop the matter.
"To suggest that Smollett entered into the agreement without the mutuality of understanding that the nolle acted as a dismissal with prejudice is to suggest either Smollett contracted for no guarantee or Smollett thought he was getting a dismissal when the State had no intention of dismissing the charges," Lyle wrote in her dissent. "That defies logic or suggests that the state engaged in a level of gamesmanship and bad faith that should be condemned."
By contrast, the majority appellate opinion delivered by Justice David Navarro argued that Foxx's nolle prosequi "does not impart finality" to Smollett's case in the way a formal nonprosecution agreement would. Along the same line, Navarro rejected Smollett's double jeopardy argument.
"Given the absence of a nonprosecution agreement with the CCSAO, reprosecuting Smollett was not fundamentally unfair," Navarro wrote. "Because the charges against Smollett were nol-prossed before jeopardy had attached in the first criminal proceeding, the subsequent prosecution did not violate his right against double jeopardy."
Confronting this stance, Smollett's petition also cites a number of cases dealing with double jeopardy and prosecutorial agreements. It focuses especially, as Uche did in September, on the 1985 Illinois Supreme Court case People v. Starks.
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.
"Here, as the Starks court found, the record is clear that the parties intended to enter into a nonprosecution agreement," Smollett argued.
The Illinois Supreme Court has not yet said if it will hear the case.
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