CHICAGO (CN) — After several months of delays, former "Empire" star Jussie Smollett filed an appellate brief with an Illinois state appeals court late Wednesday night, challenging his conviction for staging a bogus hate crime against himself in 2019.
Smollett initially put the First Division of the Illinois Appellate Court on notice of his appeal last March, only a day after he was sentenced in Cook County to five months in jail on criminal misconduct charges. He was taken into state custody directly from his sentencing hearing, but the court ordered his release pending appeal a few days later.
While the court expected Smollett's appellate brief months ago, his attorney Nnanenyem "Nenye" Uche successfully argued on five separate occasions that more time was needed to fully address the complexity of the convicted actor's case. The brief filed Wednesday night is 102 pages long, though Uche argued in prior filings that it was distilled from examining over 9,000 pages of documents.
In the brief, Uche argues that Smollett is a victim of double jeopardy, when an individual is unconstitutionally prosecuted more than once for the same crime. The openly gay, Black actor was indicted twice - once in 2019 and again in 2020 - for allegedly lying to Chicago police about being the victim of a racist and homophobic hate crime in January 2019.
Cook County State's Attorney Kim Foxx dropped the initial round of criminal disorderly conduct charges in March of that year, but a second grand jury indictment from February 2020 eventually led to Smollett's conviction on similar charges in December 2021. That second indictment was initiated by retired Illinois appellate judge Sheila O’Brien, who filed a petition with the Cook County Criminal Court in May 2019 saying Foxx’s actions seemed suspicious and that she was worried Smollett had played the legal system.
Though the criminal court agreed with O'Brien, Uche argues in the appellate brief that the second indictment was a violation of the former actor's constitutional rights - one which never should have gone forward. Smollett performed community service and forfeited his $10,000 bail bond in exchange for Foxx's office dropping the 2019 charges, which Uche said constituted punishment and thus should have protected him from repeat prosecution.
"Mr. Smollett's negotiated bail bond forfeiture and performance of community service during his first prosecution constituted punishment and thus, his second prosecution and punishment for the same offenses violated the double jeopardy clause protection against multiple punishments for the same offense," the brief states, adding that community service could be seen as punishment "even in the absence of a conviction or judgment."
Uche also takes issue with two Cook County judges: Michael Toomin, who green-lit Smollett's second indictment proceedings and appointed attorney Dan Webb of the law firm Winston & Strawn to act as a special prosecutor, and James Linn, who presided over Smollett's trial and handed down his sentence last year.
The brief states that Toomin had "express bias and a prejudgment of guilt" toward Smollett, citing the judge's words in 2019 that Smollett was a "charlatan who fomented a hoax."
Uche similarly characterized Linn's behavior as "hostile." Throughout the trial, the white judge lost his temper several times with Smollett's mostly Black defense team, cutting off lines of questioning towards police witnesses and at one point causing an attorney to leave the courtroom in tears following a particularly heated exchange. Linn also prevented the defense team from directly questioning prospective jurors, and from accessing notes of an hourslong interview Webb’s office held with Abimbola and Olabinjo Osundairo. The two brothers were among the trial's star witnesses, saying Smollett had hired them to stage the bogus hate crime.
"The dismissive commentary, hurrying of the defense during cross-examination as well as the prejudicial and unwarranted insinuations about editorialization, certainly created jury distrust of the defense team, which no doubt was extended to Mr. Smollett, who faced a fragile situation because of his highly publicized case where his guilt was publicly presumed," Uche wrote of Linn.
The brief asks the appellate court to reverse the trial court's denial of dismissal on double jeopardy grounds. Failing that, it also requests a new trial for Smollett, with a new judge.
"If Mr. Smollett’s convictions are allowed to stand, this case will set a dangerous precedent by giving prosecutors a second bite at the apple any time there is dissatisfaction with another prosecutor’s exercise of discretion," the brief states.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.