Jussie Smollett slips into hearing on his appeal of conviction for lying about racist attack

Ashlee Rezin/Sun-Times file photo

Actor Jussie Smollett appeared at ease in a Loop courtroom Tuesday, casually dressed in a yellowish beige jacket and brown dress sneakers.

His one-time hit show “Empire” had once filmed in the Michael Bilandic Building, he told a reporter next to him, and now he was there as his lawyers sought to keep him out of jail for lying about a racist and homophobic attack.

He had managed to slip by cameras in front of the building and sat in the courtroom’s gallery behind his attorneys as he listened to the arguments. Asked afterward how he thought it went, Smollett, 41, smiled politely and said he wasn’t sure. He declined further comment, promising to “talk about everything” once his long-running legal saga was over.

That could come in a several weeks when the three-judge panel of the Illinois Appeals Court is expected to rule on whether to uphold Smollett’s conviction.

Among the judges on the panel was David Navarro, a former acting presiding judge of Cook County’s pretrial division.

Smollett’s attorneys retread familiar ground during the hearing, making similar arguments they have made since the Cook County state’s attorney’s office dropped initial charges against Smollett in 2019, months after they were brought.

In a deal with prosecutors then, Smollett agreed to perform community service and forfeit his bond as restitution. 

Smollett’s attorneys argued Tuesday that his rights were violated when a new indictment was brought against him by Special Prosecutor Dan Webb, who has been appointed by Judge Michael Toomin to review the decision to drop the case.

Webb found that State’s Attorney Kim Foxx and her office had committed “substantial abuses of discretion,” but he did not find the office had improperly influenced anyone or committed any criminal wrongdoing.

Defense attorney Nenye Uche argued that the special prosecutor should never have been appointed because Foxx never officially recused herself.  “It’s our contention that she specifically did not,” Uche told the judges. 

Smollett’s attorneys also argued that Judge James Linn erred when he declined to make the special prosecutor turn over his notes, or even review them in chambers, from an hour-ong interview with the Osundario brothers, who allegedly were recruited by Smollett for the hoax.

Uche argued there could have been evidence in the notes, but the special prosecutor claimed they were work product and not subject to discovery. Uche said the judges should order a evidentiary hearing to determine whether the notes contain material that should have been handed over. 

Assistant Special Prosecutor Sean Wieber argued that the decision by Foxx’s office to drop the case, referred to as “nolle pros,” had no bearing on whether new charges could be brought.

“He didn’t bargain and receive finality,” Wieber told the panel. “He bargained for and received a nolle pros.”

After the indictment, a Cook County jury found Smollett guilty in December 2021 of lying to police when he reported he was the victim of a racist and homophobic attack on a frigid night while walking to his Streeterville apartment.

Prosecutors said Smollett, who is Black and gay, staged the attack, including hiring two brothers to rough him up and place a noose around his neck.

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

Smollett spent six days behind bars before being released while he appealed the conviction.