A split state appeals panel says actor Jussie Smollett can't undo his conviction for lying to police about the alleged racially motivated 2019 attack, which police and prosecutors say the Black gay TV actor faked for publicity and to play on the public's sympathies.
In a 2-1 decision, a three-justice panel of the Illinois First District Appellate Court sided on Dec. 1 with special prosecutor Dan Webb against Smollett, saying the controversial decision by Cook County State's Attorney Kim Foxx's office to not prosecute Smollett did not amount to a binding plea deal that barred further prosecution in connection with the racially charged incident.
A dissenting justice, however, disagreed, and said the lack of a formal plea deal doesn't mean a binding bargain had not been struck.
The legal proceedings surrounding Smollett dates back to January 2019 when Smollett generated headlines around the world by claiming white supporters of then-President Donald Trump attacked him as he walked on a sidewalk on a cold midwinter night in Chicago's Streeterville neighborhood.
Support and cries of "Justice for Jussie" quickly arose throughout the country, particularly among Democratic opponents of the former president, who sought to blame Trump for the alleged attack on the actor, which was blamed on alleged racism and homophobia.
After days of such outcry, however, police and prosecutors instead accused the "Empire" actor of faking the attack with the aid of two Nigerian acquaintances.
About two and a half weeks later, however, Foxx generated outrage from throughout Chicago and elsewhere when her office shocked many by dropping 16 counts of disorderly conduct against Smollett.
In response, retired Cook County Judge Sheila O'Brien persuaded Cook County Judge Michael Toomin to appoint Webb in August 2019 to reopen the case against Smollett, and conduct an investigation of Foxx's handling of the case.
In December 2021, a Cook County jury convicted Smollett of fix of six disorderly conduct counts for filing a false police report. Later that month, Toomin released Webb's 60-page report on the case. In that report, Webb suggested Foxx and some top aides allegedly deceived the public about the case and Foxx's involvement in initially allowing Smollett to walk.
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 $120,106 in restitution. He has remained out of jail on bond pending his appeal of the verdict.
In his appeal, Smollett primarily challenged Webb's appointment, saying the special prosecution was politically motivated and illegal, and violated his Fifth Amendment protections against being prosecuted twice for the same crimes.
He also challenged the conviction on other grounds, as well, including claims that his right to a public trial was violated by Covid courtroom capacity restrictions imposed by the courts amid the pandemic.
The two-justice majority on the appeals panel, however, said Smollett's attempts to overturn his conviction fall short.
Notably, the justices said, the decision by Foxx's office to not press charges is legally not the same thing as a formal plea deal to resolve the charges.
In short, the majority said, Smollett cannot face double jeopardy, as he was never actually prosecuted for the crimes in the first place.
"No jury had been impaneled, no witness had been sworn in, no evidence had been introduced, and Smollett had not pled guilty," the majority wrote. "Because none of these actions occurred, jeopardy did not attach to Smollett’s first criminal prosecution."
They also rejected the other bases of Smollett's appeal, saying none of the actions taken by the court amounted to violations of Smollett's rights to due process or the protection from excessive punishment.
The majority opinion was authored by Justice David Navarro, with concurrence from Justice Mary Ellen Coghlan.
In dissent, however, Justice Fredrenna Lyle said the lack of a formal plea deal doesn't mean Smollett didn't have a deal that should have prevented Toomin from appointing Webb to resume the prosecution.
In her dissent, she echoed Smollett's assertions that his prosecution was politically motivated.
She further defended Foxx's handling of the matter, echoing Foxx's public assertions that the decision to not prosecute Smollett was in line with thousands of other cases against accused criminals her office has chosen not to prosecute through the years.
She said the majority decision would result in "scaring every defendant" who entered the state's attorney's deferred prosecution program "that the State can reinstate charges against them as long as it does not run afoul of the statute of limitations."
"This sort of fundamental unfairness runs afoul of every notion of justice that this nation claims to represent," Lyle wrote. "Rich or poor, famous or infamous, the State is called to prosecute everyone fairly and justly and not be swayed simply by public criticism. Unfortunately, this case shows that outcry from some members of the community and media pressure can lead to a dismantling of such an agreement between the State and the defendant."