Actor Jussie Smollett has officially asked a state appeals court to overturn his conviction for lying to police in connection with what he alleged to be a racially-motivated January 2019 assault - an assault police and prosecutors say he faked for publicity.
Smollett filed a brief March 1 with the Illinois First District Appellate Court through his lawyers, Nnanenyem Uche, of Uche Litigation, and the Law Offices of Heather A. Widell, both of Chicago.
The case history dates to late January 2019 when Smollett, who is Black and gay, told the Chicago Police Department white supporters of then-President Donald Trump attacked him in the middle of the night as he walked in Chicago’s Streeterville neighborhood. After an initial outpouring of public support for the “Empire” star, police and prosecutors said Smollett faked the attack with the aid of two Nigerian acquaintances.
Dan Webb
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In March 2019, Cook County State’s Attorney Kim Foxx shocked many when her office dropped 16 counts of disorderly conduct against Smollett only 19 days after the initial filing. In response, retired Cook County Judge Sheila O’Brien petitioned Cook County Judge Michael Toomin to appoint a special prosecutor to investigate that decision. O'Brien asserted Foxx improperly handled the case. Toomin tabbed special prosecutor Dan K. Webb for the job in August 2019 and gave him authority to reinstate the charges.
In December 2021, a Cook County jury convicted Smollett of five of six disorderly conduct counts for filing a false police report. Later that month, Toomin approved releasing Webb’s 60-page report, in which he suggested Foxx and some top aides, although not liable for criminal conduct, might face professional consequences for allegedly deceiving the public about several key aspects of the case.
In March 2022 Smollett was given a sentence of 30 months of felony probation, including 150 days in Cook County Jail, along with $25,000 in fines and restitution of $120,106. He is out of jail on bond while appealing the ruling.
Smollett’s March 1 filing primarily challenged Webb’s appointment and subsequent work on the prosecution. He opened by alleging he held up his end of a non-prosecution agreement, which included community service and forfeiture of an initial $10,000 bail bond, and asked the appeals panel to determine that constituted a punishment such that allowing Webb to reopen the case violated his Fifth Amendment protections against double jeopardy.
“There should be no doubt that the second prosecution of Mr. Smollett was driven by the unpopular discretionary decision of an elected State’s Attorney’s Office, which, as a motive, cannot and should never override fundamental fairness and due process,” according to the filing.
Smollett said Webb’s own investigation concluded there was no misconduct or improper influence on the part of third parties leading to Foxx offering a non-prosecution agreement. While unpopular, Smollett said, the deal “was a legal and valid exercise of prosecutorial discretion” and should have been considered binding on the Office of the Special Prosecutor. As such, Smollett’s primary request is for the appeals panel to reverse a ruling failing to dismiss the indictment, first for a violation of due process rights and then for violating the Fifth Amendment.
The appeals brief further argued Judge Toomin lacked authority under the law to appoint a special prosecutor, challenged his appointment order as “vague and overbroad” and said Smollett’s request for a new judge was improperly denied, “rendering every subsequent ruling and action in this case null and void.”
Smollett also took issue with specific actions during his trial, such as a ruling preventing his lawyer from cross-examining Webb’s “star witness.” He said the alleged conflict at the root of that denial wasn’t disclosed or presented, including at an evidentiary hearing where Smollett’s lawyers weren’t allowed to inquire about the nature of the conflict.
Other concerns related to the trial included a rejected motion to compel Webb’s office to turn over notes related to witness interviews; Smollett’s lawyers being denied direct questions of prospective jurors; jury selection and instructions; excessive punishment; and a violation of due process rights related to the judge’s “several uninvited commentaries during defense cross-examination of prosecution witnesses.”
He also said it was improper to let the deliberating jury see additional footage from a “Good Morning America” interview with Smollett beyond the portion already shown in trial, said public access to the trial was improperly restricted, and alleged prosecutors’ comments and questions violated his right to a fair trial.