Jussie Smollett lawyers ask Illinois Supreme Court to overturn verdict that he falsely claimed hate crime

Lawyers for Jussie Smollett asked the Illinois Supreme Court Tuesday to overturn a jury’s 2021 guilty verdict that found the actor lied to Chicago police when he falsely claimed he was the victim of a hate crime.

During the actor’s trial, special prosecutors accused Smollett of staging the attack for publicity because he was unhappy with his salary for his role on the hit television show “Empire” and was attempting to launch a music career.

The jury found the actor guilty of five counts of disorderly conduct, and he was sentenced to 30 months of probation, with the first 150 days to be served at Cook County Jail.

At the heart of Smollett’s argument is whether the Cook County state’s attorney’s office had earlier entered into a binding agreement not to prosecute Smollett because he voluntarily agreed to forfeit his $10,000 bond and perform community service.

Defense attorney Nenye Uche told the justices Tuesday that because Smollett’s attorneys and the government reached the deal together, it should be considered a contractual non-prosecution agreement — regardless of whether that term had been used in court.

Short of reversing the jury’s verdict, Uche asked the justices to alternatively send the case back to the trial court for an evidentiary hearing to determine if a binding agreement had been reached.

Special prosecutors countered that the original agreement was honored when Smollett’s first case was dropped by prosecutors through a motion for “nolle prosequi” — a legal term when the state has decided to no longer prosecute.

But dropping the case doesn’t prevent prosecutors from being able to refile charges, Special Prosecutor Sean Weiber told the justices.

Justice Elizabeth Rochford questioned that argument, asking why Smollett would agree to voluntarily forfeit his bond if he thought he could be recharged.

“If the words nolle pros are used, regardless of the other circumstances … then a defendant should be cautioned that the reinstatement is always a possibility?” Rochford asked.

Weiber argued the answer was yes, citing “40 years of legal precedent” and that Smollett’s experienced team of lawyers knew the difference.

In Smollett’s case, he argued, there was nothing that would have dismissed the case “with prejudice” — meaning a judge says the charges can’t be refiled — because Smollett neither admitted guilt nor was deprived of his liberty.

Rochford later returned the question to Uche, asking about the argument that the “terms used were nolle pros, he voluntarily forfeited the money and that when he walked out, he should have been well aware that those charges could be re-brought?”

“Mr. Smollett isn’t an attorney,” Uche responded. “He shouldn’t be punished for any misapprehension or drafting, secretarial errors that were done on this particular agreement. The prosecutor should not hide behind technicalities.”

Last year, a divided appellate court panel affirmed the actor’s conviction in a 2-1 decision after considering similar arguments. A dissent from Justice Freddrenna Lyle sided with Smollett that there was evidence the state had entered into an agreement.

“The majority contends that there is no evidence in the State’s agreement that the parties intended for the agreement to be tantamount to a dismissal with prejudice. I disagree,” Lyle wrote.

The state Supreme Court agreed to hear the case in March.

In his closing argument, Weiber asked the justices to finally bring an end to the case, noting it has been 2,048 days since the “underlying incident.”

“He was caught,” Weiber said. “He was convicted.”

In January 2019, Smollett called police to report he was attacked by two Trump supporters who beat him, doused him with a bleach-like substance and placed a thin rope noose around his neck as he walked home from a Subway sandwich shop.

His story quickly fell apart as police launched an expansive investigation that consumed thousands of hours of manpower, officials said.

Smollett was charged by State’s Attorney Kim Foxx, who later announced she would recuse herself after it was revealed she had helped facilitate conversations between Smollett’s family and the Chicago Police Department.

Months later, the state’s attorney’s office decided to drop the charges — a decision that led to significant public outcry.

It led a judge to appoint Dan Webb as a special prosecutor to review the decision to drop charges against Smollett. Webb determined the state’s attorney office had committed “substantial abuses of discretion and operational failures,” and he ultimately brought new charges in an indictment against Smollett.

Smollett served less than a week of that sentence before he was released while appealing his case.