The team who secured the successful prosecution of actor Jussie Smollett on charges of lying to police about his 2019 alleged racist, anti-gay attack hoax have officially asked the Illinois Supreme Court to reject Smollett's likely final attempt to overturn that conviction.
On July 10, attorney Dan K. Webb and his colleagues in the Office of the Special Prosecutor for the Smollett case filed their opening brief with the state high court in the appeal filed by Smollett.
They are formally asking the Illinois Supreme Court to uphold the determination of a split state appeals panel, which had, in turn, upheld Smollett's criminal conviction in Cook County court.
Dan Webb
| winston.com
"At bottom, Smollett’s appeal to this Court is a last-ditch attempt to overturn the jury’s unanimous verdicts through novel legal arguments based on contrived and completely unsupported assertions with no evidentiary support," the special prosecutors wrote.
"Smollett’s convictions and sentence are well-supported by Illinois law, and accordingly, this Court should affirm the appellate court’s judgment."
Smollett had turned to the Illinois Supreme Court in February.
About two months earlier a divided three-justice panel of the Illinois First District Appellate Court had ruled 2-1 that the controversial and sudden 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- and politically-charged incident.
Smollett has been in court in Illinois since January 2019, when the black gay actor generated headlines around the world by claiming white supporters of former President Donald Trump attacked him as he walked on a sidewalk on a cold midwinter night in Chicago's Streeterville neighborhood.
Unquestioning sympathy and outrage quickly rose up 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 actor, notable for his role on the "Empire" television series, of faking the attack with the aid of two Nigerian brothers he knew.
Shortly after, however, Foxx's office instead drew public outrage, after her team shocked many by dropping 16 counts of disorderly conduct against Smollett.
In response, at the urging of retired Judge Sheila O'Brien, Cook County Judge Michael Toomin reopened the case and appointed Webb as special prosecutor in August 2019 and to conduct an investigation of Foxx's handling of the case.
Toomin died in July 2023 of a blood-related cancer at the age of 85. However, in 2020, Toomin, an accomplished veteran Democratic judge, managed to stave off a campaign launched by left-wing activists and allies of Foxx, including Cook County Board President Toni Preckwinkle, to unseat him. Many believed the campaign was in retribution for his decision to appoint a special prosecutor.
As special prosecutor, Webb secured a verdict in December 2021 from a Cook County jury, convicting Smollett of five disorderly conduct counts for filing a false police report.
Later in December, Toomin also 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 about Foxx's involvement in initially allowing Smollet to walk.
In March 2022, Smollett was sentenced to 30 months of felony probation, including 150 days in Cook County Jail, and was ordered to pay $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 appeals, Smollett has asserted Webb's appointment to the special prosecutor position was politically-motivated and unlawful. He further has alleged the special prosecution violated his Fifth Amendment rights against being prosecuted twice for the same crimes.
At the First District Appellate Court, a two-justice majority said Smollett did not face double jeopardy because Foxx never prosecuted him for the alleged crimes in the first place.
Foxx and Smollett, however, found a sympathizer and defender in First District Appellate Justice Fredrenna Lyle who agreed Webb's prosecution - but not Foxx's handling of the case - was politically motivated. She echoed Foxx's assertion that the decision not to prosecute Smollett was in keeping with thousands of other cases against accused criminals who Foxx has also chosen not to prosecute.
"... This case shows that outcry from some members of the community and media pressure can lead to a dismantling of ... an agreement between the State and the defendant," Lyle wrote in her dissent.
Smollett then appealed to the state Supreme Court. In his brief, Smollett's lawyer again asserted Smollett's conviction should be tossed out because Webb made no secret of his desire to ensure Smollett was punished.
"This expressed dissatisfaction with a previous punishment and the resulting subsequent prosecution is a brazen violation of the Appellant’s rights as it openly flouts the Double Jeopardy Clause hoping, no doubt, that any negative sentiment towards this Appellant would excuse this Double Jeopardy violation," wrote attorney Nnanenyem E. Uche, of the firm Uche P.C., of Chicago.
In reply, Webb and his team told the state high court that the arguments advanced by Uche and Smollett fall well short of rescuing Smollett from his criminal convictions.
The special prosecutors noted that Smollett and his lawyers told the court that there was never a deal with prosecutors at the time Foxx's office opted not to prosecute. However, now that he has been convicted, they are claiming a deal with prosecutors should block any further action against the actor.
"Had they wished to do so, defendant and the CCSAO certainly could have entered into a non-prosecution agreement under which the charges would be dismissed with prejudice," Webb's team wrote in their brief. "But there is no evidence that they entered into such an agreement, for that is not the type of dismissal the CCSAO moved for and was entered on March 26, 2019."
The special prosecutors asserted that allowing Smollett to prevail on appeal in this case would overturn over a century of court precedent holding that the arrangement under which Smollett was let free, formally known as a nolle prosequi, does not bar further prosecution on the same evidence and charges.
"Defendant’s (Smollett's) claim that he was put in legal jeopardy and 'punished' when he forfeited his bond in exchange for a dismissal nolle prosequi ignores bedrock Illinois and United States Supreme Court precedent establishing the bright-line rule that jeopardy does not attach until a jury is sworn in a jury trial, the first witness is sworn in a bench trial, or a guilty plea is accepted—none of which occurred here," the special prosecutors wrote.
They further noted that Smollett's conviction at trial came amid "an overwhelming amount of physical evidence, video evidence, cell phone evidence, and testimony from several CPD officers and detectives, all of which corroborated" the testimony from the Nigerian brothers who allegedly aided Smollett in the hoax.
And they argued the sentence imposed by Judge Toomin was "considered, well-reasoned, and appropriately tailored to the unique facts of the case," not "excessive" or "retributive," despite Smollett's assertions otherwise.
The state Supreme Court has not yet ruled in the appeal.
Webb and his fellow special prosecutors are officially listed as special attorneys general for the state of Illinois, acting through the Office of the Special Prosecutor, under Illinois Attorney General Kwame Raoul.