Actor Jussie Smollett has beaten his conviction for allegedly lying to police about the racial and homophobic attack he famously claimed to suffer at the hands of white supporters of then-President Donald Trump in Chicago in 2019.
On Thursday, Nov. 21, the Illinois Supreme Court tossed the conviction that had been secured by a jury and then affirmed in state appellate court, saying to allow those convictions to stand would unconstitutionally upend the ability of prosecutors to enter specific kinds of deals with criminal defendants, because accused criminals could no longer rely on prosecutors' assertions they could walk free without facing further action at a later time.
Specifically, in this case, the court said it would be "unjust" to allow Smollett's conviction to stand in light of the deal he struck with the office of Cook County State's Attorney Kim Foxx, which allowed him to end the action against him by paying $10,000 and performing minimal "community service."
Illinois Supreme Court Justice Elizabeth Rochford
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The unanimous court said the special prosecution, jury trial and conviction that followed amounted to violations of Smollett's right to due process.
Justice Elizabeth K. Rochford authored the 5-0 opinion.
"Here, we have a fully executed agreement between defendant and the State. Both parties performed their part of the agreement, and the trial court enforced it. To allow the State to renege on the deal and bring new charges would be fundamentally unfair and offend basic notions of due process," Rochford wrote in the opinion.
Rochford later added: "... We are aware that this case has generated significant public interest and that many people were dissatisfied with the resolution of the original case and believed it to be unjust.
"Nevertheless, what would be more unjust than the resolution of any one criminal case would be a holding from this court that the State was not bound to honor agreements upon which people have detrimentally relied."
Rochford was joined in the opinion by her participating Democratic colleagues, Justices P. Scott Neville and Mary K. O'Brien, and Republican justices David Overstreet and Lisa Holder White.
Two Democratic members of the court, Chief Justice Mary Jane Theis and Joy V. Cunningham, abstained for unspecified causes.
The case had landed before the Illinois Supreme Court in February, when Smollett had appealed his criminal convictions, which had been rendered by a Cook County jury and then affirmed by a divided judicial panel in the First District Appellate Court in Chicago.
The case centered on Foxx's sudden and controversial decision to not prosecute Smollett for lying to police investigating his claims of being assaulted by white Trump supporters on on a cold January night on the streets of Chicago's Streeterville neighborhood in 2019. Smollett claimed his assailants had shouted at him that "This is MAGA country!" - referring to Trump's "Make America Great Again" campaign slogan - and had hung a noose around his neck, poured bleach on him and struck him.
Smollett asserted he was attacked for being black and gay.
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 calling for "justice" for Smollett was then-California Sen. and future Vice President Kamala Harris, among other prominent Democratic politicians, media personalities and left-wing activists.
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 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 Smollett 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's lawyers have argued the special prosecution was illegal and politically motivated. He further argued the special prosecution was a violation of his constitutional rights.
On appeal, a 2-1 panel of the First District Appellate Court agreed with Webb and the Special Prosecutors' Office that Smollett could not claim he was being unconstitutionally prosecuted twice, when he was never prosecuted the first time.
At the Illinois Supreme Court, however, Smollett found judges more amenable to his claims.
There, Smollett's lawyer, Nnanenyem E. Uche, of the firm Uche P.C., of Chicago, centered his arguments on the assertion that the deal Foxx struck with Smollett under the legal procedure known as "nolle prosequi" should be honored and could not be undone, no matter how unjust the public and other judges may believe it to have been.
Nolle prosequi is a Latin phrase meaning "will no longer prosecute." It essentially amounts to a decision to simply abandon charges.
Uche 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.
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.
In response, attorney Sean Wieber, of Webb's special prosecutors' office, said ruling for Smollett would instead run counter to a century of precedent in Illinois law that he said has held that defendants released under a nolle prosequi arrangement can still be prosecuted without violating their rights.
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 oral arguments before the Illinois Supreme Court in September.
In the ruling, Rochford and her colleagues agreed that the nolle prosequi deal between Foxx and Smollett should be honored and protected.
While courts have allowed criminal defendants who have been released under a nolle prosequi arrangement to later be prosecuted, the court said those kinds of prosecutions should not happen when the nolle prosequi is entered as a part of deals like the one struck by Foxx and Smollett.
And the court said the state's decision to accept and keep Smollett's $10,000 essentially sealed the bargain, because it was paid as a cash bond and then "forfeited in reliance on an agreement with the State."
"Because the initial charges were dismissed as part of an agreement with defendant and defendant performed his part of the agreement, the second prosecution was barred. The parties bargained for a dismissal, and the nolle prosequi was simply the means by which the State effectuated the agreement," Rochford wrote.
Allowing a prosecution to continue following a dismissal of charges under a nolle prosequi deal would lead to "untenable" and "terrible policy consequences."
In her decision, Rochford pointed to the Pennsylvania Supreme Court's decision to toss out criminal convictions against comedian Bill Cosby, because that court also determined Cosby had relied on an initial decision by a prosecutor not to pursue charges against him for "lack of evidence," at the time.
Quoting from that 2022 Pennsylvania ruling, Rochford said Smollett's rights to avoid prosecution under Foxx's deal "eclipse ... society's interest" in ensuring an accused criminal is prosecuted.
“A contrary result would be patently untenable. It would violate long-cherished principles of fundamental fairness. It would be antithetical to, and corrosive of, the integrity and functionality of the criminal justice system that we strive to maintain," Rochford wrote, quoting from the Pennsylvania decision.
In response to the ruling, Webb noted the decision was essentially on procedural grounds and should not be confused with any findings that Smollett was "innocent."
"Nothing about today’s decision upsets the work undertaken by the Special Prosecutor’s office, or the overwhelming evidence underlying the jury’s verdict that Mr. Smollett faked a hate crime and reported it as a real hate crime to the Chicago Police Department," Webb said in a prepared statement issued by the Special Prosecutor's Office for the Smollett case.
Webb's statement said, in full:
“We are disappointed in the Illinois Supreme Court’s decision today to overturn Jussie Smollett’s convictions and sentence, including the award of over $120,000 in restitution to the City of Chicago for its overtime expenses in investigating Mr. Smollett’s fake hate crime. We respectfully disagree with the Court’s factual and legal reasoning which upends long-standing Illinois precedent. Indeed, the Special Prosecutor’s brief to the Illinois Supreme Court was replete with Illinois case law that would not preclude a second, new prosecution following a dismissal without prejudice via nolle prosequi. Even the Illinois Supreme Court agreed in its opinion that its holding today was not explicit in earlier Illinois decisions.
“Make no mistake - today’s ruling has nothing to do with Mr. Smollett’s innocence. The Illinois Supreme Court did not find any error with the overwhelming evidence presented at trial that Mr. Smollett orchestrated a fake hate crime and reported it to the Chicago Police Department as a real hate crime, or the jury’s unanimous verdict that Mr. Smollett was guilty of five counts of felony disorderly conduct. In fact, Mr. Smollett did not even challenge the sufficiency of the evidence against him in his appeal to the Illinois Supreme Court.
“My office spent nearly two years developing evidence and working closely with the Chicago Police Department to prepare that case for trial. It is very important I point out that today’s decision is also not the result of any error or conduct by the Office of the Special Prosecutor, the trial court, or the Chicago Police Department. In fact, the events that led to the Illinois Supreme Court to reverse Mr. Smollett’s conviction occurred 5 months before I was appointed as Special Prosecutor.
“Rather, today’s decision is only possible because of the unprecedented resolution of Mr. Smollett’s initial case by the Cook County State’s Attorneys’ Office (CCSAO) in March 2019, which the Illinois Supreme Court determined barred Mr. Smollett from any further prosecution. The Illinois Supreme Court reached this decision notwithstanding the fact that the CCSAO dismissed the initial Smollett case via a nolle prosequi, which does not bar re-prosecution under Illinois law, and Mr. Smollett’s own lawyers told the public immediately following the dismissal of his initial case in March 2019 that there was 'no deal' with the CCSAO.
“As previously set forth in my 63-page, very detailed Special Prosecutor’s Public Summary Report, my office developed evidence of substantial abuses of discretion and operational failures by the CCSAO in prosecuting and resolving the initial 2019 Smollett case, and also found that State’s Attorney Kimberly Foxx and other CCSAO prosecutors made multiple false and/or misleading statements to the public. Those significant failures and false and/or misleading statements by State’s Attorney Foxx’s office led Cook County Judge Michael B. Toomin to appoint me as Special Prosecutor in order to restore the public’s faith in Illinois’ criminal justice system. In fact, there was a public clamor to have a well-respected trial lawyer and law firm agree to become a special prosecutor in order to help restore the public’s confidence in the Cook County judicial system. My law firm, Winston & Strawn LLP, accepted the appointment pro bono with no compensation to the firm in order to give back to the City of Chicago.”
“Our Winston & Strawn lawyers fulfilled this mandate by devoting over 5 years and more than 15,000 hours in examining the original Smollett investigation and bringing new charges, which yielded a unanimous jury conviction of Mr. Smollett in 2021 on five felony counts of wrongful misconduct. Nothing about today’s decision upsets the work undertaken by the Special Prosecutor’s office, or the overwhelming evidence underlying the jury’s verdict that Mr. Smollett faked a hate crime and reported it as a real hate crime to the Chicago Police Department.
“Despite today’s ruling, the City of Chicago remains able to pursue its pending civil lawsuit against Mr. Smollett in order to recoup the over $120,000 in overtime expenses the Chicago Police Department incurred for investigating Mr. Smollett’s fake hate crime.”
“I want to provide a special thanks to Deputy Special Prosecutors Sean G. Wieber, Samuel Mendenhall, and the entire team at Winston & Strawn who assisted in this matter, for all of their dedication and efforts over the years. Today’s ruling does not change how deeply proud I am of the work my Special Prosecutor’s office accomplished; nor does it undermine the jury’s verdict, and most importantly, it does not clear Jussie Smollett’s name - he is not innocent.”