CHICAGO — Jussie Smollett’s lawyers told an Illinois appellate court Tuesday it should toss the former “Empire” actor’s convictions for staging a racist, homophobic attack against himself in 2019 and then lying about it to Chicago police, arguing that anger over the case led to properly dismissed charges being improperly restored.
Smollett, foregoing his usual three-piece suits in favor of a casual beige jacket and blue jeans, slipped into court for the hour-long oral arguments Tuesday and sat on spectator benches. He seemed to listen intently, leaning forward to follow the debate before the three-judge panel.
Smollett, 41, didn’t speak to reporters after the hearing, and Chicago TV station WGN showed footage of him from behind leaving the court building via an alley, wearing a hat and different coat.
“Public outrage against the defendant cannot overrule the rule of law,” one of his lawyers, Nenye Uche, told the panel — referring to how public perception of Smollett turned after police said he created a crime and wasn’t a victim of one.
Uche added that many of the issues surrounding the appeal and Smollett’s prosecution boil down to the question: “Is it fair?”
If the appeal before the Chicago-based First District Appellate Court fails, Smollett will have to finish a 150-day stint in jail that his trial judge ordered during his 2022 sentencing. Smollett spent just six days in jail before his release pending the outcome of the appeal. A ruling is expected to take several weeks.
Among a long list of arguments in Smollett’s 76-page written appeal is that his 2021 trial violated his Fifth Amendment protections against double jeopardy — being punished for the same crime twice. It says he already performed community service and forfeited a $10,000 bond as part of a 2019 deal with the Cook County State’s Attorney’s Office to drop the initial charges.
That issue was a focus of Tuesday’s oral arguments.
Smollett, who is Black and gay, was the target of a racist justice system and people playing politics, Uche told reporters last year. Uche criticized special prosecutor Dan Webb’s decision to press for new charges in 2020. He also called the trial judge’s sentence excessive for a low-level felony.
In the appeal, Smollett’s legal team says chief prosecutor Kim Foxx’s office used proper discretion to drop the original charges four years ago.
“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 appeal says.
Sean Wieber, an attorney representing the special prosecutor, told the court the way the Foxx’s office went about dismissing the charges left open the possibility of recharging Smollett without violating protections against double jeopardy.
It is well established, Wieber said, that double jeopardy arises in unambiguous, specific circumstances — none of which applied to Smollett. If a defendant hasn’t gone to trial and has never pleaded guilty, it’s typically not double jeopardy if the defendant is indicted a second time on the same charges.
“Illinois law is crystal clear. … It’s Law School 101,” he said about the criteria.
Smollett has not only never pleaded guilty, Wieber noted, but “Mr. Smollett has never made any statement that he accepts guilt.”
In January 2019, during a bitterly cold day in Chicago, Smollett reported to police that he was the victim of a racist and homophobic attack by two men wearing ski masks. The manhunt for the attackers soon turned into an investigation of Smollett himself, leading to his arrest on charges that he’d orchestrated the attack himself.
Authorities said Smollett paid two men he knew from work on the TV show “Empire” to stage the attack. Prosecutors said he told them what racist and homophobic slurs to shout, and to yell that Smollett was in “MAGA Country,” a reference to the campaign slogan of Donald Trump’s presidential campaign.
A jury convicted Smollett in 2021 on five felony counts of disorderly conduct — the charge filed when a person lies to police. He was acquitted on a sixth count.
In 2022, Cook County Judge James Linn sentenced Smollett to 30 months of felony probation, with 150 days served in Cook County Jail, and ordered that he pay $120,106 in restitution to the city of Chicago and a $25,000 fine.
As he sentenced Smollett, Judge Linn excoriated him as a narcissist and pronounced himself astounded by Smollett’s actions given the actor’s multiracial family background and ties to social justice work.
During sentencing and as Smollett was led away to jail, he shouted that he was innocent, warning the judge that he was not suicidal and if he died in custody it was somebody else who would have taken his life.
