Special prosecutor Dan Webb, who secured the conviction of actor Jussie Smollett in connection with lying to police regarding allegations he faked a hate crime on the streets of Chicago in 2019, has responded to an attempt to overturn that conviction on appeal.
In a brief filed with the Illinois First District Appellate Court, Webb said his office properly handled Smollett’s case. Webb also vouched for Cook County Judge James Linn and challenged the “legally and factually unsupported” assertions in Smollett’s appellate brief.
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
| winston.com
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 appointed Webb 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, could 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 filing, through his lawyers, Nnanenyem Uche, of Uche Litigation, and the Law Offices of Heather A. Widell, both of Chicago, primarily challenged Webb’s appointment and subsequent work on the prosecution.
In response, Webb’s May 10 filing targeted Smollett’s appeal on four issues: validity of the prosecution, pre-trial and trial issues and the sentence.
“Smollett’s ‘kitchen sink’ appeal cobbles together purported issues from all aspects of his case,” Webb wrote. “None constitutes error or an abuse of discretion that warrants reversing the conviction or sentence — much less remanding with instructions to dismiss the indictment altogether, as Smollett urges. Smollett’s attacks on the validity of his prosecution are legally and factually unsupported.”
Webb said the appeals panel doesn’t have the jurisdiction to review the order regarding his prosecutorial appointment because Smollett didn’t file a notice of appeal from that order, instead asking the Illinois Supreme Court for “extraordinary relief.” He further argued “a review of the record from the two-week trial confirms that the trial court carefully considered and reached legally correct decisions on each of the alleged issues raised by Smollett relating to jury selection, jury instructions, evidentiary matters and witness examination.”
Smollett argued Webb’s prosecution violated his due process rights. But Webb said the March 2019 agreement with the Cook County State’s Attorney’s Office was nothing more than an abandonment of the case, not a promise to defer or forever halt prosecution or grant immunity. That Smollett completed community service and forfeited an initial $10,000 bail bond also is immaterial, Webb argued, because the forfeit was voluntary and no judge imposed the service requirement.
Webb further defended Judge Linn’s exercise of prosecutorial discretion, saying the limit on who could cross-examine the Nigerian brothers solved the issue of Uche’s attorney-client relationship with those men, established before Uche began representing Smollett. To contentd Linn shouldn’t have conducted an evidentiary hearing, Webb said, “Smollett distorts and omits the key factual timeline” leading to that hearing.
“By faking a hate crime and reporting it as a real crime, Smollett attempted to exploit this fake incident for his own personal gain,” Webb wrote. “The jury found him guilty beyond any reasonable doubt based on the overwhelming evidence establishing his guilt. After listening to the evidence over the course of the trial, including hours upon hours of Smollett’s own testimony (rejected by the jury as lies), and an hours-long posttrial motion and sentencing hearing, the trial court sentenced Smollett to 30 months’ probation, with the first 150 days to be served in the custody of the Cook County Jail, and also ordered Smollett to pay $120,106 in restitution to the city of Chicago. This was an appropriate, legally sound sentence, and well within the trial court’s discretion, which should be affirmed.”
Working with Webb in the office of the special prosecutor are Sean Wieber and Samuel Mendenhall, of the firm of Winston & Strawn, of Chicago.