CHICAGO (CN) — Actor Jussie Smollett, who is charged with six counts of felony disorderly conduct for allegedly lying about being the victim of a racist and homophobic hate crime, appeared in Cook County criminal court Monday for the first day of a trial that is the culmination of a two-year legal saga.
Smollett claims he was attacked in Chicago in January 2019 by two masked men who wrapped a noose around his neck and doused him in bleach while telling him he was in “MAGA country.” But during the investigation into the alleged hate crime, two brothers from Nigeria — Abimbola and Olabinjo Osundairo — claimed Smollett paid them $3,500 to stage the attack. Both brothers had met Smollett on the set of the television show "Empire."
The city of Chicago then sued Smollett, seeking $130,000 in restitution, and the Cook County State’s Attorney’s Office brought 16 counts of felony disorderly conduct charges against him for the allegedly false report, only to drop them all in March 2019. Text messages from Cook County State’s Attorney Kimberly Foxx showed she believed Smollett was a “washed up” actor who was overcharged; they also showed she kept tabs on the trial’s prosecution despite having publicly recused herself from it.
This revelation prompted Cook County Judge Michael Toomin to appoint 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. Ultimately, a grand jury convened renewed six counts of felony disorderly conduct against Smollett in early 2020. The counts include making false hate crime, battery and aggravated battery reports to several Chicago police officers. Smollett pleaded not guilty.
Smollett’s legal team, led by attorney Nenye Uche, tried last month to have the case dismissed, but presiding Cook County Criminal Judge Linn threw out the motion.
On Monday, six men and six women — two of whom are Black — were selected to comprise the jury in the case. Linn questioned whether any of them had prior knowledge of the case, if any of them watched "Empire" or TMZ, if they were part of anti-police civil rights groups, or if they consumed right-wing news from such outlets as Newsmax or The Epoch Times.
Only a small handful of potential jurors said they might not be able to be fair in deciding a verdict, including a woman who was dismissed as a candidate who said the alleged attack on Smollett, who is gay, made her fear for her daughter’s safety.
Following jury selection, both the prosecution and defense delivered opening arguments late Monday afternoon. Prosecutor Dan Webb argued that Smollett faked the hate crime because of his former studio's inaction after receiving a letter that referred to him as a “Black fag” and depicted him hanging from a tree.
“You’re gonna hear from the evidence that the "Empire" studio, after receiving that letter, did not [take it seriously].” Webb said.
“Mr. Smollett knew that the hate crime hadn’t occurred; that it was a fake,” he continued.
Webb argued that the allegedly fake hate crime was Smollett’s way of getting his employers to pay attention to the issue, and — as prior prosecutors have argued — a means of attracting media attention.
“The evidence will show Mr. Smollett is Black and is openly gay … He developed a secret plan that there was actually a hate crime that occurred against him by supporters of Donald Trump. He made arrangements to fake the hate crime, then he falsely reported the fake hate crime to the police as if it were a real crime,” Webb said.
Webb argued that between Jan. 22 and Jan. 29, 2019, Smollett prepared for the alleged hate crime with the Osundairo brothers before carrying it out around 2 a.m. on Jan. 29. He claimed the trio even performed a “dress rehearsal” of the attack on Jan. 27. Police records reportedly show Smollet's car was in front of the Osundairo brothers’ apartment in Chicago’s Lakeview neighborhood that day.
Webb claimed that Smollett tried to plan the attack to take place in front of a police camera in the nearby Streeterville neighborhood, but mistook which direction the camera was facing. This is why, Webb argued, the attack was not captured on camera.
The prosecutor also told the court about city security footage that he said shows the brothers waiting for Smollett on a street bench near the alleged attack site, and he pointed to Smollett's refusal to submit his phone, DNA samples and medical records to the police during their investigation as evidence of his guilt.
Webb assured the jury that the Osundairo brothers would corroborate his version of events, as would the police.
“The evidence is going to show that we have established our burden of proof beyond a reasonable doubt,” Webb said.
Webb’s narrative was countered by defense attorney Nenye Uche, who attacked the credibility of the Osundairo brothers and claimed the police and prosecution rushed to judgment.
“There is an elephant in this courtroom,” Uche said. “And we’ll call this elephant ‘assumptions.'”
“It was a real crime that occurred ... Jussie Smollett is a real victim. It’s a shame I have to say this a second time,” Uche continued, referencing the similar charges Smollett faced in 2019.
Uche presented very little physical evidence to the jury Monday and instead attempted to poke holes in Webb’s summary of events and provide counter-narratives to explain the prosecution's evidence.
The defense attorney claimed the Osundairo brothers faked their friendship with Smollett and considered him a mark to milk for cash and favors. He argued the $3,500 Smollett gave the brothers was actually a payment for Abimbola to act as Smollett’s personal trainer.
Uche also said police found a shotgun, a high-powered rifle, boxes of ammunitions, heroin and multiple cell phones in the Osundairo brothers’ home, implying the pair were hardened criminals willing and able to engage in a homophobic attack. Olabinjo was charged with attempted murder for a stabbing in 2011 and pleaded guilty to aggravated battery in that case.
“Chicago police recovered every piece of evidence that I’m talking about,” Uche said.
Uche countered Webb’s allegation that it was suspicious Smollett’s car was found in front of the Osundairo’s apartment. It is not a crime for someone to drive around near their own neighborhood, Uche said, or to spend time with someone they considered a friend.
“Driving around your neighborhood? Well lock us all up!” Uche said.
Uche concluded by saying the jury would be obligated by the lack of hard evidence directly linking Smollett to a crime to find him not guilty.
“Do your job!” Uche said — an exclamation the prosecution objected to.
The trial will pick up tomorrow and is expected to continue throughout the rest of the week. If found guilty of the Class 4 felonies he faces, Smollett could spend up to three years in prison.
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