Jussie Smollett case: Appeals court affirms conviction

An Illinois appeals court on Friday ruled that the sentence and conviction against Jussie Smollett should stand, turning another page in the years-old, infamous case.

Seeking to overturn a sentence and conviction for falsely reporting a hate crime to Chicago police in January of 2019, attorneys for the former “Empire” actor alleged a lengthy laundry list of violations in the case handled by special prosecutor Dan Webb after the Cook County state’s attorney’s office controversially dropped all charges.

In a 2-1 decision, appeals court judges largely rejected the arguments, finding that, among other issues, Cook County prosecutors’ decision to drop charges did not constitute a non-prosecution agreement with Smollett. Justice Freddrenna Lyle, though, dissented, arguing that “Smollett gave up something of value, community service and bond forfeiture, in exchange for a nolle of the whole indictment.”

It was not immediately clear on Friday whether Smollett would petition the Illinois Supreme Court to take his appeal. If the actor declines to continue to fight the conviction, or if the high court decides against taking the case, the appeals court would remand the case back to the trial court for Smollett to serve his sentence.

“We’re getting down to near the end of the road, which is rewarding,” Webb told the Tribune.

Requests for comment from Smollett’s attorney were not immediately returned.

Webb also released a statement following the opinion’s release, saying he hopes the decision “will reassure the community that our legal system is fair, just and impartial.”

Smollett appeared in court in person in September as a panel of appellate judges fired questions at lawyers 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 Webb as the special prosecutor.

The substance of that hearing, and whether it constituted an agreement with Smollett, was central to the actor’s appeal of his convictions and sentence for fabricating a hate crime in 2019. The 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.

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 Webb, a former U.S. attorney, 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 had argued that the dropped charges amounted to an agreement between prosecutors and the actor, and that double jeopardy had attached when Smollett forfeited the bail money.

Among other violations alleged in the appeal by Smollett: that the office of the special prosecutor withheld evidence when it did not turn over notes from an interview with the Osundairo brothers, though prosecutors contended it was work product exempt from disclosure, that the trial judge impeded public access to the courtroom by implementing COVID-19 restrictions, and that prosecutors improperly excluded jurors on the basis of race and sexual orientation.

Attorneys for the state, though, among other arguments, contended that prosecutors who drop charges are not precluded from refiling charges in the same case.

In the majority opinion delivered by Justice David Navarro and concurred by Justice Mary Ellen Coghlan, the justices wrote that Smollett “challenges virtually every aspect of the second prosecution that resulted in his convictions and sentence.”

“The record does not establish that Smollett entered into a nonprosecution agreement with the (Cook County State’s Attorney’s Office), in which the (office) agreed to forgo further prosecution of him in exchange for his performance of community service and the forfeiture of his bond,” the opinion reads.

When dropping the charges, the decision said, Cook County prosecutors did not describe an agreement with Smollett, but rather simply said they had “reviewed” Smollett’s community service and agreement to forfeit the bond. Smollett did not enter into a “cooperation agreement,” according to the decision.

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“No jury had been impaneled, no witness had been sworn in, no evidence had been introduced, and Smollett had not pled guilty,” the decision said. “Because none of these actions occurred, jeopardy did not attach to Smollett’s first criminal prosecution.”

The opinion additionally did not find merit to other issues raised by Smollett.

In the dissenting opinion, Lyle argued that “a bilateral agreement took place, which bound the State, nonetheless.” Lyle cited a report from the special prosecutor that said prosecutors had internally described the dismissal as similar to a deferred prosecution agreement, when prosecutors dismiss charges, generally in low-level cases, if certain requirements are met.

Lyle further argued that the notion that Smollett would forgo the bond amount without an understanding that there wouldn’t be further prosecution “defies logic or suggests that the State engaged in a level of gamesmanship and bad faith that should be condemned.”

“While the State could have exercised greater semantical precision on the record by stating that the case was terminated with no intention of refiling, from the record it is apparent that was its intent,” the dissent said.

In his statement, Webb addressed the dissent, writing: “We respectfully disagree with the dissenting justice’s opinion and its conclusions, which the appellate court noted were unsupported by the trial court record and Illinois law.”

mabuckley@chicagotribune.com

Originally Published: Dec 01, 2023 at 9:56 am