Lawyers for Jussie Smollett have asked an appeals court to release the former “Empire” actor from jail while he attempts to overturn his conviction for faking a hate crime.
Smollett on Thursday began a five-month stint in Cook County Jail, where his lawyers say he is being held in a “psych ward,” and that “paperwork” on his cell door indicates he is at risk of self harm, according to a news release from Smollett’s legal team. He will likely serve only half the 150-day sentence, as his jail term is eligible for “day-for-day” credit for good behavior.
In an emotional outburst after Judge James Linn announced Smollett would be taken to jail at the end of his sentencing hearing Thursday, the actor rose from his seat and announced repeatedly that he was “not suicidal.”
“And if anything happens to me when I go in there, I did not do it to myself. And you must all know that,” Smollett said before he was led from the courtroom.
Jocqui Smollett, the actor’s younger brother, said the actor had long been anticipating being sent to jail based on Linn’s rulings before and during the trial, and made the remark to make a public record he was not despondent over the sentence.
“He wanted to make it clear that he is very mentally stable. This is not going to be another Sandra Bland,” Jocqui Smollett said, referring to the Naperville native who was found hanged in Texas jail cell in 2015 after being arrested during a traffic stop.
“That was a purposeful statement to let the public know that if something happened to him in jail, he did not harm himself.”
Jussie Smollett has gotten daily visits from his attorneys, and Jocqui Smollett visited him at the jail on Sunday. Smollett is prepared for the likelihood that he will serve out every day of his sentence, his brother said.
“His message to the world is that he is ... physically strong and mentally strong, and he is focused and he is ready to take on this challenge,” Jocqui Smollett said.
In a statement issued Monday, the Cook County Sheriff’s Office said Linn ordered that Smollett be held in protective custody and the actor being housed in a part of the jail with “enhanced monitoring,” which is used for both individuals with mental health issues and those who require extra security. Smollett is not on suicide watch, and “it would be inaccurate and irresponsible to make any assumption about his mental or medical condition based on where he is currently housed.”
In a statement issued Friday, the sheriff’s office said while in protective custody, Smollett is alone in a cell monitored by security cameras and with a guard stationed at the cell door.
While the actor will have “substantial time” outside his cell and will be allowed to interact with staff and make phone calls, he will not mingle with other inmates. The treatment is standard for high-profile inmates at the jail, which houses around 6,000 detainees.
Smollett’s lawyers have filed a notice they intend to appeal the guilty verdict in Smollett’s trial and his sentence of 30 months of probation, with the first five months spent in Cook County Jail, as well as $140,000 in fines and restitution.
A motion filed with the First District Court of Appeals asks the court to suspend his sentence or allow Smollett to go free on bond while his appeal works its way through the courts, noting that the actor would almost certainly have completed his jail sentence well before his appeal has been litigated. The motion also asks to postpone payment of the fines.
The filing also states concerns about Smollett’s mental health if he is kept in protective custody within the jail and that he could face violence from other inmates.
“There are serious constitutional issues with this case that should concern us all, no matter what you think of Jussie Smollett,” Smollett’s attorney, Nene Uche said Monday.
The filing also states Smollett has a “compromised immune system” that could put him at greater risk if he should contract COVID-19. Uche declined to elaborate on Smollett’s condition, but said the actor appeared mentally and physically strong during a visit at the jail Sunday.
The motion includes a long list of issues to be raised when his full appeal is filed, including that Special Prosecutor Dan Webb was improperly appointed after Smollett had reached a controversial deal with State’s Attorney Kim Foxx’s office to dismiss the case shortly after he was charged in 2019.
Smollett was found guilty in December on five counts of disorderly conduct for making false statements to police when he reported himself the victim of a hate crime attack near his Streeterville apartment.
Veteran Chicago defense attorney Richard Kling said that appeal bonds are relatively rare and are granted only when issues raised for an appeal seem strong enough to overturn a conviction.
“In the best of times, and that was before COVID, an appeal takes 18 months to two years, so he certainly would have completed the jail portion of his sentence by then,” Kling said.
