CHICAGO — After three years of twists and turns, Jussie Smollett’s roller-coaster criminal case could finally come to an end Thursday when the actor is scheduled to be sentenced for staging a hoax hate crime on himself, barring a long-shot bid to get his conviction thrown out.
Detractors eager to see the former “Empire” actor do hard time likely will not get their wish. Smollett has minimal criminal history and was convicted on low-level nonviolent charges. Supporters hoping to see him exonerated before sentencing begins also should not get their hopes up: Requests for a new trial are commonly filed but very rarely granted.
Unlike during Smollett’s trial, the world can watch in real time Thursday as Smollett learns his fate. Associate Judge James Linn ruled last month that news cameras can be present in court during Thursday’s hearing.
A jury convicted Smollett in December 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.
Smollett was found guilty on five of six counts of disorderly conduct, a Class 4 felony, alleging he falsely reported to police that he was a victim of a hate crime attack.
Cook County State’s Attorney Kim Foxx said last week that after Smollett is sentenced she will speak more openly about the case. The Smollett matter was turned over to a team of special prosecutors after a judge found Foxx improperly recused herself, and Smollett’s first Cook County charges — which had been quietly dropped — were completely voided.
Linn, who presided over Smollett’s trial, will have a range of options come sentencing. Class 4 felonies carry penalties of one to three years in prison, but judges also can give a sentence of probation or conditional discharge, which is similar to probation but with less strict conditions. Linn also could impose a fine as well as order restitution.
Dozens of Smollett’s supporters — including the Rev. Jesse Jackson Sr. and the president of the NAACP — have sent letters to Linn urging him to consider probation or another alternative to prison, according to the defense team.
The letters include mentions of Smollett’s lengthy record of community service, the nonviolent nature of the conviction and argue that he has already been punished: “excoriated and vilified in the court of public opinion,” as Jackson wrote. Some noted fears for Smollett’s safety in prison as a gay man with Black and Jewish heritage.
Smollett has a long history of volunteer work and has donated hundreds of thousands of dollars to civil rights groups, and in 2018 he bought a wheelchair-accessible van for a 6-year-old double amputee after learning the child’s school district did not have such a vehicle, noted Derrick Johnson, president and CEO of the NAACP.
“Lest there be an argument that such donations and activities were made as part of any PR damage control, such acts all preceded the 2019 events that resulted in charges being brought against Mr. Smollett,” Johnson wrote.
Some Smollett supporters, including one of his brothers and his 92-year-old grandmother, are also expected to testify or submit statements on his behalf at sentencing Thursday.
Last week, the city’s Law Department along with police Superintendent David Brown submitted a letter of their own, asking that prosecutors seek $130,106 in restitution. That’s the amount of overtime expenses police incurred over the course of the case.
After Smollett’s first charges were dropped, the city sued Smollett for the overtime costs. The suit was put on hold until after the new case had concluded, but that hold would be lifted after sentencing. If Smollett is sentenced to pay that amount in restitution, the city could recoup its losses that way and avoid the expense of the lawsuit, Brown and Deputy Corporation Counsel Stephen J. Kane wrote.
“The overwhelming stress and fatigue that was put on the Chicago officers who were involved in the case was immense and negatively impacted their health and wellbeing,” the letter states. “... While the City can address the financial cost of Mr. Smollett’s false reports and the investigation that ensued, a cost that can never be measured is the harm caused by reducing the likelihood that actual victims of hate crimes will report these crimes.”
Courthouse observers have thought it unlikely that Smollett would get prison time, though the matter has been unpredictable from the very start.
One factor that could weigh against lenience was Smollett’s own testimony at trial. Special Prosecutor Dan Webb told reporters after the verdict that he likely would argue at sentencing that Smollett lied under oath for “hours and hours and hours,” something that Linn could take into consideration when deciding on what punishment he deserves.
Push for new trial
But before handing down a sentence, Linn must consider Smollett’s request for a new trial. Submitted in late February, it is a behemoth legal filing that accuses Linn and prosecutors of an enormous range of errors, from Linn’s “hostile attitude and prejudicial commentary” to prosecutors’ alleged discrimination against Black potential jurors.
Linn should acquit Smollett altogether, or at least grant him a new trial, the defense filing argues. Such requests are filed in nearly every case but are very rarely granted.
Still, the document is a preview of the arguments Smollett might bring up in an appeal. Over more than 80 pages, Smollett’s attorneys list in detail the alleged errors made before and during the trial, highlighting some of the strange moments during proceedings and bringing light to conversations conducted behind closed doors.
Everything from Linn’s strict limitation on the number of courtroom spectators to errant jury instructions to prosecutors’ alleged pressuring of a witness to change his story should be grounds for throwing out the jury’s verdict, the defense stated.
Smollett’s attorneys accused prosecutors of bias during jury selection, noting that the special prosecutor’s office kicked off three Black potential jurors and one gay male juror.
“Almost 60% of their (strikes) were used to exclude jurors who represented appropriate cross sections of Mr. Smollett’s community,” the defense filing states.
Potential jurors can be booted for “cause,” that is, due to evidence of bias or other extenuating circumstances. But each side can also strike jurors without having to explain why, unless the other side accuses them of kicking people off for demographic reasons.
While prosecutors said they removed the Black potential jurors for reasons other than their race, the defense filing said those explanations were just a smoke screen for bias.
Ultimately, there was only one Black person on the jury that convicted Smollett.
Smollett’s attorneys also said prosecutors were motivated by prejudice on the first day of deliberations, when they agreed with Linn that jurors should be dismissed for the day at about 5:15 p.m. to accommodate one white male juror’s schedule. Replacing him with an alternate instead, as the defense wanted, would have put a Black woman on the jury.
Challenging judge’s conduct
Smollett’s attorneys also blasted Linn for what they called a hostile and biased attitude that “attacked the entire theory of the case offered by the defense” in front of jurors.
During one particularly tense moment in the trial, defense attorneys — who were trying to paint police as potentially homophobic — asked a detective whether his partner, during interrogation, had referred to Smollett’s “pretty face.”
During an objection and an uproar of cross-talk, Linn at one point said, “So what?” It was a comment the defense filing said was evidence of Linn announcing he “did not care about homophobic comments against gay men” and signaling to jurors that the defense’s case should not be taken seriously.
When a defense attorney was cross-examining Olabinjo Osundairo about his allegedly homophobic text messages, Linn commented in front of jurors that the questions were “getting a little far afield” and that “these are all very collateral matters” — a comment that prompted a motion for a mistrial.
During an off-the-record sidebar at which the defense asked for the mistrial, Linn allegedly made a physical move toward defense attorney Tamara Walker, which she characterized as a lunge. When she made those claims in open court, the room grew chaotic, with animated cross-talk and another defense attorney accusing Linn of “snarling” when he sustained prosecutors’ objections.
Linn, from the bench, strenuously denied pulling faces or making threatening moves, saying he was just “quite startled” that the defense would ask for a mistrial on those grounds.
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