The Illinois Court of Appeals ruled Friday that the sentence and conviction against Jussie Smollett should stand, turning another page in the notorious, years-old case.
Seeking to overturn a conviction and conviction for falsely reporting a hate crime to Chicago police in January of 2019, attorneys for the former “Empire” actor alleged a long laundry list of violations in the case handled by special prosecutor Dan Webb following the Cook County state’s ruling. The attorney’s office controversially dropped all charges.
In a 2-1 decision, the appeals court judges largely rejected the arguments, finding, among other things, that Cook County prosecutors’ decision to drop the charges did not constitute a non-prosecution agreement with Smollett. However, Judge Frederina Lyle dissented, arguing that “Smollett gave up something of value, community service and bond forfeiture, in exchange for the dismissal of the entire indictment.”
It was not immediately clear Friday whether Smollett would petition the Illinois Supreme Court to hear his appeal. If the actor refuses to continue fighting the conviction, or if the Supreme Court decides not to take the case, the appeals court will send the case back to the lower court for Smollett to serve his sentence.
“We are nearing the end of the road, which is rewarding,” Webb told the Tribune.
Requests for comment from Smollett’s attorney were not immediately responded to.
Webb also issued a statement after the opinion was published, saying he hopes the decision “will reassure the community that our legal system is fair, fair, and impartial.”
Smollett appeared in court in person in September, where a panel of appellate judges asked attorneys questions about the 2019 hearing during which Cook County prosecutors dropped all charges against him, sparking at the time a firestorm of controversy as well as Webb’s appointment to Ultimately as a position. Special prosecutor.
The substance of that hearing, and whether it constituted a plea agreement with Smollett, was pivotal in the actor’s appeal of his convictions and sentence for framing a hate crime in 2019. The actor told Chicago police officers that two men attacked him in the Loop in the early hours of January 29, They beat him, shouted homophobic slurs, and put a noose around his neck.
But in a development that sparked feverish international attention, prosecutors the following month charged Smollett with disorderly conduct for setting up the hoax on the Abimbola and Olbenjo Osundairo brothers, who testified that he paid them to commit the attack.
About a month after prosecutors charged Smollett, they dropped all charges against him, noting that he forfeited his $10,000 bail and did community service. Cook County District Attorney Kim Foxx had previously handed the case over to deputies, saying she had recused herself.
Former Cook County Judge Michael Tomine Webb, a former U.S. attorney, was appointed special prosecutor amid scrutiny over the decision. Webb refiled the charges, and the jury convicted Smollett on 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 argued that the dropped charges amounted to an agreement between prosecutors and the actor, and that double jeopardy was attached when Smollett lost bail money.
Other violations alleged in Smollett’s appeal include: that the special prosecutor’s office withheld evidence when it did not turn over notes from an interview with the Osundairo brothers, even though prosecutors maintained they were the result of an action exempt from disclosure, and that the trial judge obstructed public access to the courtroom By enforcing coronavirus restrictions, and that prosecutors improperly excluded jurors based on race and sexual orientation.
However, the state’s attorneys asserted, among other arguments, that prosecutors who dropped charges are not barred 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 trial that led to his conviction and sentence.”
“The record does not establish that Smollett entered into a non-prosecution agreement with (the Cook County Prosecutor’s Office) whereby (the office) agreed to waive further prosecution of him in exchange for his performance of community service and forfeiture of his bail,” the opinion reads.
In dismissing the charges, the decision said, Cook County prosecutors did not describe the agreement with Smollett, but simply said they “reviewed” Smollett’s community service and bail waiver agreement. Smollett did not enter into a “cooperation agreement,” according to the decision.
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“No jury was seated, no witness was sworn, no evidence was presented, and Smollett did not admit guilt,” the decision read. “Because none of these acts occurred, the risk was not connected to Smollett’s first criminal prosecution.”
Additionally, the opinion found no merit in the other issues raised by Smollett.
In the dissenting opinion, Lyle said that “a bilateral agreement has been reached, which nonetheless binds the state.” Lyle cited a report from a special prosecutor that said prosecutors internally described 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 idea that Smollett would waive the bail amount without understanding that there would be no further prosecution “defies logic or suggests that the state has engaged in a level of manipulation and bad faith that should be condemned.”
“While the State could have exercised greater semantic precision in the record by indicating that the case was terminated with no intention of refiling, it is clear from the record that that was its intent,” the dissenter said.
In his statement, Webb addressed the dissent, writing: “We respectfully disagree with the dissenting judge’s opinion and conclusions, which the appellate court noted were not supported by the trial court’s record and Illinois law.”
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