Saying the court would essentially upend a longstanding understanding of Illinois law dating back decades, at least, an attorney who helped lead the successful prosecution of actor Jussie Smollett for staging a fake racist, anti-gay attack on the streets of Chicago again asked the Illinois Supreme Court to not allow Smollett to use a deal with Cook County State's Attorney Kim Foxx to wipe away that conviction and walk away.
On the other side, Smollett's lawyer told the state's high court that allowing Smollett's conviction to stand would lead to an opposite drastic result, setting a legal precedent that would grant prosecutors and courts free rein to renege on deals with defendants.
The two sides squared off in oral arguments before the Illinois Supreme Court on Sept. 17, as Smollett seeks to overturn both his conviction on charges of lying to police and the appellate court's decision rejecting Smollett's claim the prosecution violated his rights.
Illinois Supreme Court justices Mary K. O'Brien, left, and Elizabeth Rochford
| twitter.com/marykayobrienil; facebook.com/JudgeRochford/
The arguments were heard by just five of the seven members of the court. Justices Elizabeth Rochford, P. Scott Neville, David Overstreet, Mary K. O'Brien and Lisa Holder White attended the oral arguments and engaged with the attorneys' arguments.
Chief Justice Mary Jane Theis and Justice Joy V. Cunningham did not take part in the late morning session.
Both Theis and Cunningham were on the bench, however, during earlier proceedings before the court on other cases.
A spokesperson for the state Supreme Court confirmed Theis and Cunningham will also not be taking part in the decision, which will leave the decision to the remaining five justices.
Four of the five remaining justices would need to sign off on a decision to overturn the appellate court's ruling. If Smollett cannot persuade at least four of the remaining five justices to overturn the appellate ruling, the lower court's decision will stand as the final word in the case, barring a potential successful appeal by Smollett to the U.S. Supreme Court.
Smollett's case landed before the state high court after Smollett appealed a ruling from the Illinois First District Appellate Court.
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.
Foremost among those demanding swift justice for Smollett was current Democratic Presidential nominee Vice President Kamala Harris. Then the junior senator from California, Harris leaped to Smollett's defense without question, calling the staged attack "an attempted modern-day lynching." In a post to the social media platform X, then known as Twitter, Harris called Smollett "one of the kindest, most gentle human beings I know." She added "No one should have to fear for their life because of their sexuality or color of their skin. We must confront this hate."
The social media post remains on the profile Harris is using to support her presidential campaign. While Harris later said she was "sad" and "frustrated" by the false nature of Smollett's claims, she has not renounced her support for the actor.
However, as Harris and many other prominent Democrats and celebrities rushed to turn Smollett's alleged attack into a political weapon against their enemies, police instead accused the actor of faking the attack with the aid of two Nigerian brothers he knew.
Public outrage, however, then quickly shifted to Foxx's office when her deputy prosecutors stunned many by dropping 16 counts against Smollett under a deal that would have allowed Smollett to walk free in exchange for 15 hours of voluntary community service and forfeiting a $10,000 bond he posted when he was charged.
Amid the outcry, then Cook County Judge Michael Toomin reopened the case at the urging of retired Judge Sheila O'Brien and appointed attorney Dan Webb as special prosecutor 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 powerful Democratic 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.
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.
Later in December, Toomin also released Webb's 60-page report on the case. In that report, Webb suggested Foxx and some top aides deceived the public about the case and about Foxx's involvement in initially allowing Smollet to walk.
Smollett appealed the jury verdict, claiming Webb's appointment as special prosecutor was politically-motivated and unlawful. He alleged the special prosecution violated his Fifth Amendment rights against being prosecuted twice for the same crimes.
At the appellate court, two of the three justices hearing the case said Smollett never faced double jeopardy because Foxx never actually prosecuted him nor did Foxx's office ever actually agree to dismiss the charges. Rather, Smollett was released under an arrangement known as nolle prosequi, under which prosecutors simply agree to stop prosecuting.
The appellate judges said this means the defendant can still be prosecuted on the same evidence and charges.
A dissenting justice in that decision, Fredrenna Lyle, sided with Smollett saying she feared allowing Smollett to be prosecuted after the nolle prosequi deal would show "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."
During oral arguments, Democratic justices on the court seemed to echo those concerns and appeared to be sympathetic toward Smollett's arguments.
Justices Rochford and O'Brien, in particular, peppered attorney Sean Wieber, representing the special prosecutor's office, with questions over whether upholding the conviction would result in a legal precedent that would "upend" the ability of Foxx and other prosecutors to make deals with criminal defendants.
Rochford repeatedly noted that Smollett had already surrendered his $10,000 bond and voluntarily done 15 hours of community service, even though that service had never been ordered by a court and preceded his deal with Foxx.
And O'Brien worried that Foxx and other prosecutors could be undermined by judges and special prosecutors who "resurrect" criminal cases that defendants believed had been resolved by deals, to satisfy "a member of the public" or "public outcry."
"If we're setting a precedent by ruling in this case, what would stop that from happening?" O'Brien asked.
In response, Wieber noted the special prosecution of Smollett has not resulted in similar special prosecutions in any of the state's 102 counties in the years since. And he said this case is very different from other potential scenarios, as Smollett has had access throughout his case to top legal counsel, who should have advised the actor of the risk he accepted in agreeing to the nolle prosequi deal.
Wieber noted at the time the deal was initially entered in court, Smollett's lawyers did not object or request formal dismissal of the charges. Instead, Wieber noted, Smollett's lawyer said, "We absolutley agree."
"The defense knew exactly what it was getting that day," Wieber said.
He noted more than a century of precedent in Illinois law has held that defendants released under a nolle prosequi arrangement can still be prosecuted without violating their rights.
He noted Fifth Amendment rights against double jeopardy aren't triggered until a jury is sworn in at trial, a witness is sworn in a bench trial, or a guilty plea is accepted, none of which happened in Smollett's case.
Accepting Smollett's argument that the conviction was unconstitutional because it violated a supposed deferred prosecution deal with Foxx's office under questionable circumstances would amount to a "sea change" in Illinois law and understanding of nolle prosequi arrangements, Wieber said.
In response, Smollett attorney Nnanenyem E. Uche, of the firm Uche P.C., of Chicago, argued it was the special prosecution that violated longstanding Illinois legal precedent, which he asserted generally bars prosecutors from violating the "integrity of the plea deal" and resurrecting criminal cases after a nolle prosequi deferred prosecution.
In this case, Uche said both Smollett and Foxx understood the deal was intended to kill the case against the actor.
"The only agency that didn't agree is the one that wasn't in the room" at the time the deal was presented and accepted, Uche said, referring to Webb and his team from the Office of the Special Prosecutor.
He further likened the decision to prosecute Smollett while keeping his $10,000 bond to be paid to the city of Chicago as restitution to an "illegal taking" of property by the government, in violation of the 14th Amendment.
Rochford asked Uche if Smollett should have known that he accepted the risk of further prosecution when prosecutors and the judge used the term "nolle prosequi" in entering his deal.
Uche said no, asserting that Smollett "is not an attorney."
"Prosecutors shouldn't hide behind technicalities," Uche added.