Illinois Appellate Court judges on Tuesday fired questions at lawyers for Jussie Smollett about the 2019 hearing during which Cook County prosecutors dropped all charges against him, spurring at the time a firestorm of controversy as well as the eventual appointment of a special prosecutor.
The substance of that hearing, and whether it constituted an agreement with Smollett, is central to the actor’s appeal of his convictions and sentence for fabricating a hate crime in January of 2019. The former “Empire” TV show actor reported to Chicago police officers that two men attacked him in the Loop in the early hours of Jan. 29, hitting him, yelling homophobic slurs and placing a noose around his neck.
But in a twist that drew frenzied international attention, prosecutors charged Smollett the following month with disorderly conduct for concocting the hoax with brothers Abimbola and Olabinjo Osundairo, who testified that he paid them to perpetrate the attack.
Appellate judges heard the oral arguments at the Michael Bilandic Building in Chicago where Smollett appeared for the proceedings, sitting in the front row of a full courtroom.
“The public outcry against the defendant cannot overrule the rule of law,” his attorney Nenye Uche argued.
About a month after prosecutors charged Smollett, they dropped all counts against him noting that he forfeited his $10,000 bond and had done community service. Cook County State’s Attorney Kim Foxx previously handed the case to deputies, saying she had recused herself.
Former Cook County Judge Michael Toomin appointed former U.S. Attorney Dan Webb as special prosecutor amid scrutiny around the decision. Webb refiled charges, and a jury convicted Smollett of five of six counts of disorderly conduct. He was sentenced to 150 days in jail, 30 months of probation and $130,160 in restitution.
Smollett’s attorneys argued that the 2019 proceeding where charges were dropped amounted to an agreement between prosecutors and the actor, and that double jeopardy had attached when Smollett forfeited the bail money. Uche said that money is now “part of city treasury.”
“Are there other references to the alleged agreement?” Justice Mary Ellen Coghlan asked.
Uche replied, “only what prosecutors stated during the dismissal.” He added that in a news release, special prosecutors discussed Cook County prosecutors having “resolved” the case when they dismissed it.
Justice David Navarro cut in: “What the special prosecutor said as part of a press release is not part of the record.”
Uche told the justices that prosecutors told the court he gave up the bond and performed community service, though Navarro said, citing transcripts, that prosecutors noted to the court that Smollett performed community service, but did not say that the community service was in exchange for charges being dropped.
The attorneys launched a number of other arguments, including that the special prosecutor withheld evidence by not turning over notes from an interview with the Osundairo brothers. Prosecutors have said the notes were work product exempt from disclosure. They also argued that a special prosecutor was improperly appointed.
Attorneys for the state countered that prosecutors who drop charges are not precluded from refiling charges in the same case.
“The jury was presented with overwhelming evidence that (Smollett) perpetrated a fake hate crime,” said Sean Wieber, an attorney for the state.
Wieber argued to the justices that Smollett’s case does not meet the criteria for when double jeopardy attaches, such as when a jury is sworn or when a guilty plea is accepted.
“Smollett has never made a single statement that he’s accepted guilt,” Wieber said.
In response to the allegations that prosecutors withheld evidence, Wieber said the Osundairo brothers were “cross examined for days,” and that the attorneys at the time objected to the large volume of discovery turned over.
“They were complaining to the trial judge, ‘Stop, it’s the Library of Congress, we need time to go through it all,’” Wieber said.
The justices took the case under advisement.
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