CHICAGO — Actor Jussie Smollett deserves prison time for faking a shocking hate crime on himself in Chicago on a frigid January night in 2019, a special prosecutor argued at Smollett’s sentencing Thursday.
While special prosecutor Dan Webb did not recommend a specific term behind bars, he said Smollett’s “serious criminal conduct” surrounding the case coupled with his decision to take the witness stand and lie to a Cook County jury meant that prison time was warranted.
“Mr. Smollett made the choice that he could deceive that jury, and he went on the stand and lied to them about so many different things,” Webb said in his argument. “ ... It was a ridiculous story.”
Webb also said that in the three years since the January 2019 attack, Smollett has never once apologized for the impact his crime had on the city or the victims of real hate crimes who have trouble getting police to believe them.
In addition to a prison term, Webb asked Judge James Linn to order Smollett to pay $130,000 to the city to cover the police overtime it took to investigate his false claim and serve a significant amount of time doing community service.
In an animated argument, Smollett attorney Nenye Uche argued for leniency, saying that Smollett has suffered enough from the intense negative publicity and damage to his reputation for the past three years. He was “shocked” that Webb asked for incarceration, he said.
The prosecution’s proposed sentence is “overkill, it’s all punitive,” Uche says. “And that is not justice, that’s retribution.”
Linn should adopt the $10,000 bond forfeiture from Smollett’s previous case as his sentence in this case as well, indicating that anything else would be double jeopardy: “You can’t punish a person twice.”
And given the COVID-19 pandemic, a jail sentence could be a death sentence, Uche said.
“We send Mr. Smollett, he dies of COVID, and for what, a low-level Class 4 offense?”
Smollett will have a chance to address the court Thursday evening after a brief recess.
The arguments came as Smollett returned to Cook County court Thursday for the first time since his media-firestorm trial and conviction last year.
His supporters have sent a flood of letters to Linn applauding Smollett’s character and seeking leniency. City officials have written they hope Smollett is required to pay more than $130,000 in overtime costs police incurred while investigating the case.
Smollett was found guilty in December on five of six counts of disorderly conduct alleging he falsely reported to police that he was a victim of a hate crime in 2019.
Smollett’s family members and supporters crowded into two rows in the gallery. The former “Empire” actor himself arrived in court about 1:15 p.m., and stood alone with his back to the courtroom while attorneys met in Linn’s chambers.
Prosecutors read portions of a letter from Chicago police Superintendent David Brown and an attorney from the city’s Law Department, noting the “tremendous chilling effect” false hate crime reports can have on real victims.
The city wants Smollett’s sentence to include more than $130,000 in restitution, to pay back the cost of overtime that police during their investigation.
The defense then presented several witnesses who spoke about Smollett’s character. Sharon Gelman, who worked with Smollett at the nonprofit Artists for a New South Africa, described him as hardworking and enthusiastic about charitable work.
“He was one of the rare people who had the gift of making hard work fun,” she said.
Smollett’s older brother, Joel, told the judge that while his brother may have been convicted of a low-level felony, “to us this has felt like the reincarnation of Al Capone’s trial.” He then turned to prosecutors and said his family didn’t need to be lectured about race relations.
Joel Smollett said the “gut-wrenching and stomach-turning” punishment his brother has already received is enough. He told the judge Jussie has been in a “pseudo-form of house arrest” since 2019, “in essence quarantine almost a year before the COVID pandemic even began.”
Smollett’s 92-year-old grandmother, Molly Smollett, took the stand and described Smollett as a “justice warrior” with a generous spirit.
“The Jussie I know and love does not match up with the media’s betrayal of him,” she said, urging the reporters in the room to perform better investigative journalism.
“Jussie is loved and respected by all that know him, and I ask you, Judge, not to send him to prison,” she said. “If you do, send me along with him, OK?”
Smollett’s attorneys then read into the record some of the letters written to Linn in support of Smollett, including some from luminaries such as the Rev. Jesse Jackson, actors Alfre Woodard and Samuel L. Jackson and the head of the NAACP. All spoke highly of Smollett’s character and called on Linn to avoid a prison sentence.
On the bench, Linn scowled and shook his head during the reading of some of the letters, at one point putting his head in his hand and frowning.
The hearing began with about an hour and a half of arguments on Smollett’s request for a new trial, which Linn ultimately denied. The ruling was expected; requests are commonly argued before sentencing but almost never granted.
“We’ve talked about this for two years. I do believe that at the end of the day, Mr. Smollett received a fair trial,” Linn said.
Defense attorney Tina Glandian had asked Linn to throw out the jury’s verdict and grant Smollett a new trial. Such arguments are common before sentencing, but are granted extremely rarely.
Glandian accused prosecutors of leaning on multiple witnesses who may have been favorable to the defense. In particular, one witness testified he was “pressured and threatened” by prosecutors to say he may have been mistaken when he said he saw a white man in a ski mask running away at the time of the attack. That testimony would have corroborated Smollett’s account that one of his assailants had light skin.
In addition, Smollett’s second prosecution was fatally flawed, and should never have been brought in the first place, Glandian said. There were no valid legal grounds to appoint a special prosecutor in the Smollett case, she argued. And Smollett’s first agreement with Cook County prosecutors – 15 hours of community service and the forfeiture of his $10,000 bond – protects him from a second prosecution.
“His due process rights have been violated as a result of the (second) indictment, because he was promised not to be hauled back into court and that’s exactly what happened to him,” Glandian said.
The defense attorneys also should have had a chance to question potential jurors, Glandian argued. That would have been a break from Linn’s usual trial practice, in which he is the only person asking questions, but Glandian argued that the overwhelming negative publicity brought Smollett into court with a “presumption of guilt,” and so attorneys should have been able to participate in the process more actively.
Linn broke in during her argument and asked if she was saying he should have asked jurors every single question the defense proposed.
“You wanted me to ask the (potential jurors) ‘What kind of animal would you like to be?’” Linn said. " ... Or, ‘Superman or Batman, what do you prefer?’ You really think I was supposed to ask (that)?”
In response, attorney Sean Wieber, a member of special prosecutor Dan Webb’s team, said that none of the issues raised by the defense rose to the level of serious trial error, and some were head-scratching at best.
Wieber said in particular that Smollett’s attorneys accusing prosecutors of improperly excluding Black jurors was just the latest in repeated attempts by the actor and his supporters to “interject and weaponize race and sexual orientation into this case” and is completely without merit.
Wieber said Smollett has tried to blame everyone for his conviction, including the police, the media, the judge, the entire Cook County justice system, political figures, witnesses at trial, COVID-19 and even the jury itself.
“Page after page after page of finger-pointing” that should be ignored, Wieber said.
Ultimately, the sentencing decision is up to Linn, who will have a range of options. Smollett was convicted of Class 4 felonies, the state’s lowest-level felony category. The charges carry penalties of one to three years in prison, but also probation or conditional discharge, which is similar to probation but with less strict conditions. Linn also could require Smollett to pay a fine or restitution.
It is likely that if Smollett is sentenced on all five counts, the sentences will run concurrent with each other, but Linn would have the option to impose consecutive sentences if he determines it is necessary to protect the public from further criminal conduct by Smollett.
Courthouse observers have noted it seems unlikely that Smollett will be sentenced to prison time, given his relative lack of criminal history and nonviolent charges. But the case has been unpredictable from the start.
A jury convicted Smollett after an eight-day trial that attracted a maelstrom of national media coverage. Prosecutors successfully argued Smollett orchestrated a phony attack on himself in 2019 with the help of Abimbola and Olabinjo Osundairo, two brothers who testified that, at Smollett’s request, they yelled racist and homophobic slurs and tried to wrap a noose around his neck.
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