CHICAGO (CBS) — Actor Jussie Smollett has been indicted on six new charges of disorderly conduct, accusing him of filing false police reports claiming he was the victim of a racist and homophobic attack last year.
A special Cook County grand jury handed down the new indictment on Tuesday, following a six-month investigation by special prosecutor Dan Webb.
In a statement, Webb’s office said Smollett filed four separate false police reports claiming he was the victim of a hate crime.
“The grand jury’s investigation revealed that Jussie Smollett planned and participated in a staged hate crime attack, and thereafter made numerous false statements to Chicago Police Department officers on multiple occasions, reporting a heinous hate crime that he, in fact, knew had not occurred,” Webb said in a statement.
BREAKING: Actor Jussie Smollett indicted by a grand jury. Special prosecutor Dan Webb has been digging into the case since August. More details to follow . @cbschicago https://t.co/1sBfbemQIM pic.twitter.com/f7QJnbRmMz
— Charlie De Mar (@CharlieDeMar) February 11, 2020
Smollett’s legal team issued a statement Tuesday night claiming the new indictment was political in nature and an affront to justice.
“This indictment raises serious questions about the integrity of the investigation that led to the renewed charges against Mr. Smollett, not the least of which is the use of the same CPD detectives who were part of the original investigation into the attack on Mr. Smollett to conduct the current investigation, despite Mr. Smollett’s pending civil claims against the City of Chicago and CPD officers for malicious prosecution. One of the two witnesses who testified before the grand jury is the very same detective Mr. Smollett is currently suing for his role in the initial prosecution of him
“After more than five months of investigation, the Office of the Special Prosecutor has not found any evidence of wrongdoing whatsoever related to the dismissal of the charges against Mr. Smollett. Rather, the charges were appropriately dismissed the first time because they were not supported by the evidence. The attempt to re-prosecute Mr. Smollett one year later on the eve of the Cook County State’s Attorney election is clearly all about politics not justice.”
It was unclear where Smollett was Tuesday night, but he is due in court on Feb. 24.
Cook County prosecutors last year dropped 16 disorderly conduct charges against Smollett, just over a month after Chicago police had accused him of orchestrating a hoax because he was upset with his salary on the TV show “Empire.”
Last August, Cook County Judge Michael Toomin appointed Webb, a former federal prosecutor, as a special prosecutor in the Smollett case; tasking him to not only investigate Cook County State’s Attorney Kim Foxx’s handling of the case, but to decide if Smollett should be further prosecuted for allegedly staging a fake hate crime against himself.
In a statement on the new Smollett indictment, Webb wrote that his office “obtained sufficient factual evidence to determine that it disagrees with how the CCSAO resolved the Smollett case.”
Webb said the Cook County State’s Attorney’s office could not provide him with any evidence that the decision last year to dismiss the charges against Smollett was handled similar to other cases.
“The CCSAO has been unable to provide the [Office of the Special Prosecutor] with documentary evidence that shows that, in dismissing the Smollett case on the terms presented in court on March 26, 2019, the CCSAO relied on other dispositions of similar cases prior to the Smollett case that would justify this disposition,” Webb wrote.
In March 2019, Foxx said, “This case was handled like the other cases that have gone through our alternative prosecution model.”
Webb asked for examples of those similar cases, and so did CBS 2. We couldn’t find any, and neither could Webb.
However, Webb said his office has not reached any conclusions about whether anyone in Foxx’s office engaged in wrongdoing, and said that part of his investigation remains open.
Foxx is running for reelection this year, and in a statement Tuesday afternoon, her campaign questioned the timing of the indictment against Smollett.
“The Cook County State’s Attorney’s office charged Jussie Smollett with multiple counts, and today the Special Prosecutor did the same. What’s questionable here is the James Comey-like timing of that charging decision, just 35 days before an election, which can only be interpreted as the further politicization of the justice system, something voters in the era of Donald Trump should consider offensive,” the Foxx campaign wrote.
Smollett, who is black and openly gay, had told police he was attacked as he was walking home around 2 a.m. on Jan. 29, 2019. He claimed two masked men – one of them also wearing a red hat – shouted racist and homophobic slurs as they beat him, put a noose around his neck, and poured a chemical on him.
Police said, in reality, Smollett had paid those two men, Ola and Abel Osundairo, $3,500 by check to stage the attack. But weeks after his arrest, prosecutors dropped charges against him, after he agreed to forfeit his $10,000 bail and performed 16 hours of community service, but did not admit any guilt.
An attorney for the Osundairo brothers said they are aware of the new charges against Smollett and are “fully committed to the public knowing the truth about what occurred on January 29, 2019.”
“The Osundairo brothers will continue to cooperate with that process and they thank the Special Prosecutor’s office for their tireless work in seeing that justice was administered,” attorney Gloria Schmidt Rodriguez stated in an email.
Toomin had earlier ruled that a special prosecutor was needed in the case, due to “unprecedented irregularities” in how Cook County State’s Attorney Kim Foxx handled the case, specifically by handing it over to her second-in-command after announcing she had recused herself.
The judge said Foxx had no authority to appoint someone to take over the case for her, so every decision her office made — from charging Smollett, to indicting him, to ultimately dismissing the case — was invalid.
In ruling for a special prosecutor in the Smollett case, Toomin said Foxx had no authority to hand off the case to her top deputy after announcing she had recused herself from the case because of contact with a relative of Smollett’s before he was charged.
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Toomin said Foxx effectively appointed First Assistant State’s Attorney Joseph Magats to a “fictitious” office to serve in her stead.
“Here, the ship of the State ventured from its protected harbor without the guiding hand of its captain. There was no master on the bridge to guide the ship as it floundered through unchartered waters,” Toomin wrote in his ruling.
As a result, Toomin said there effectively was no state’s attorney when Smollett was arrested, charged, indicted, arraigned, and finally when charges later were dropped. So all of those decisions were invalid.
“The unprecedented irregularities identified in this case warrants the appointment of independent counsel to restore the public’s confidence in the integrity of our criminal justice system,” he wrote.
The brothers’ attorneys have acknowledged they took part in a hoax, but said they have apologized for it, and only did so because Smollett paid them.
Police have said Smollett orchestrated the fake hate crime because he was upset with his salary on “Empire.”
RELATED: Osundairo Brothers Sue Jussie Smollett’s Attorneys, Mark Geragos And Tina Glandian, For Defamation | Kim Foxx’s Office Says Her Life Has Been Threatened In Wake Of Jussie Smollett Case Being Dropped
Investigators said the two brothers wore gloves during the staged attack, and did punch Smollett, but the scratches and bruises on Smollett’s face most likely were self-inflicted.
Smollett has denied all the allegations, and his attorneys have claimed he was exonerated when Foxx’s office dropped the charges.
Smollett also accused Chicago police of malicious prosecution, claiming he was the victim of “mass public ridicule and harm” after he was charged with orchestrating a fake hate crime against himself. The city is suing Smollett to recover the $130,000 cost of the investigation.
Late Tuesday, the city Law Department issued a statement emphasizing that the city is still seeking to recover those funds.
“We look forward to reviewing the indictment and, as we have said previously, the City stands by our original complaint seeking to recover costs for Mr. Smollett’s false statements,” the statement said. “We again thank the Chicago Police Department detectives for their hard work on the original investigation.”
Foxx previously said she recused herself from the case after having conversations with one of Smollett’s relatives before he was charged with disorderly conduct.
After Magats took over the case, and prosecutors ended up dropping all charges a month after Smollett was arrested, after the “Empire” actor performed 16 hours of community service, and agreed to forfeit his $10,000 bail, but did not admit guilt.
Hundreds of emails and text messages later released by Foxx’s office showed two weeks before the charges were dropped, Foxx texted her staff, dismissing him as a “washed-up celeb who lied to cops,” and telling them he was being charged too harshly.
Critics have said had Foxx truly recused herself of the case, it would have been handed over to a state’s attorney from a different county.
What about double jeopardy?
Legal experts have said that’s not an issue because Smollett was never put on trial in the first place.