CHICAGO (CBS) — Jussie Smollett pleaded not guilty Monday to a fresh round of charges accusing the former “Empire” actor of staging a homophobic and racist attack last year.
Smollett’s attorney, Tina Glandian, entered the plea on his behalf during a brief hearing Monday morning before Cook County Judge James Linn.
Special prosecutor Dan Webb requested $10,000 bail for Smollett – the same bond from his original case – but Linn said he didn’t see Smollett as a flight risk, and granted him a recognizance bond, which doesn’t require him to post any money to be released ahead of trial. Smollett is due back in court on March 18.
Smollett’s attorneys had sought to delay the arraignment, after filing a motion with the Illinois Supreme Court, seeking a stay as it considers their request to vacate a Cook County court order appointing a special prosecutor in the case. The defense team also filed a separate motion to dismiss the case against Smollett on double jeopardy grounds.
“One of the protections that the double jeopardy clause provides is not to punish somebody twice for the same offense. Previously he did forfeit his bond, in the amount of $10,000. That in essence was a punishment stemming from the criminal proceedings, and therefore trying to punish him again a second time around is not permitted under the double jeopardy clause. You don’t just get a do over,” said Smollett’s attorney, Tina Glandian.
Smollett himself did not speak to reporters before or after his arraignment.
A new indictment filed earlier this month charged Smollett with six counts of disorderly conduct, accusing him of filing false police reports that he was attacked on the way home from Subway in the middle of the night in Streeterville in January 2019.
Cook County prosecutors dropped the original case against Smollett, dismissing 16 counts of disorderly conduct against him last March, without requiring he admit any wrongdoing, in a controversial move just weeks after he’d pleaded not guilty.
A special prosecutor later was assigned to look into the entire case, after a judge found “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.
Smollett’s attorneys said it’s frustrating to be back in court nearly a year after Cook County prosecutors dropped the charges against him.
“He’s obviously frustrated to be dragged through this process again, but he has tremendous support,” Glandian said. “At this point, this case has become such an ordeal, his primary concern is moving on himself.”
Glandian said Smollett’s legal team is confident either the state’s highest court will bring an end to the case by ruling the special prosecutor shouldn’t have been appointed in the first place, or that the trial judge will dismiss the case against Smollett on double jeopardy grounds.
Attorney for Jussie Smollett enters a plea of not guilty on Smollett’s behalf. @cbschicago
— Charlie De Mar (@CharlieDeMar) February 24, 2020
The case now looms over the race for Cook County State’s Attorney, as Kim Foxx faces three challengers for re-election, Foxx’s opponents all have used it to challenge her on her decision making – at the very least.
Foxx has admitted she made mistakes with the Smollett case and has tried to put it behind her, but her opponents have accused her of wrongdoing.
Judge Michael Toomin 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.
Toomin said Foxx effectively appointed First Assistant State’s Attorney Joseph Magats to a “fictitious” office to serve in her stead.
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 judge appointed former federal prosecutor Dan Webb to investigate the entire case, and authorized him to prosecute Smollett again if he deemed it necessary.
Earlier this month, a special Cook County grand jury convened by Webb indicted Smollett on the new charges.
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. Ola had been Smollett’s personal trainer. But weeks after Smollett’s 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.
The Osundairo brothers were in court on Monday for Smollett’s new arraignment, along with their attorney, Gloria Schmidt Rodriguez, who said they already have been questioned by the special prosecutor, and will continue to cooperate with the probe. Schmidt said the brothers are willing to testify against Smollett at trail, if the special prosecutor asks them.
“They are here because they want the truth to be told. They are here because they are confident in the work that the Chicago Police Department and the special prosecutor’s office put into this investigation,” she said. “To anyone out there that thinks they got some kind of immunity or some kind of plea deal out of this, that’s incorrect.”
Attorney Gloria Schmidt talks to the media following Court hearing for Jussie Smollett. The Osundairo brothers are standing behind her.
— Charlie De Mar (@CharlieDeMar) February 24, 2020
Schmidt said the Osundairo brothers also want to apologize for the role they played in the hoax. The brothers have admitted they staged the attack at Smollett’s request, because he paid them to do it.
“The brothers want the public to know that they were honest, and open, and remorseful about their conduct in this entire event. They have been truthful since day one,” she said.
On Sunday, Mayor Lori Lightfoot said Smollett should be held accountable for lying to police about being the victim of an attack.
“He needs to face the charges. He committed a crime, and he needs to be prosecuted to the fullest extent of the law, and we are going to continue to aggressively make him accountable for the wasted police resources that went into investigating what turned out to be a total hoax,” Lightfoot said.
The new charges amount to Class IV felonies – which is the lowest level of felony in Illinois law.
“He’s back to square one,” CBS 2 Legal Analyst Irv Miller said. “Whatever he could have gotten a year ago before the case was dropped, he could get right now, and that includes deferred prosecution – if done the right way this time.”
The penalties could range from community service prison time.
“I think the big criteria for the prosecutor on that is, will he admit he did it? And will not consider deferred prosecution if he won’t admit he did it,” Miller said. “He could also get probation, and he could also get possibly a one- to three-year sentence in the Illinois Department of Corrections, which I do not think will happen in this case.”
Miller explained that charging Smollett again does not amount to a case of double jeopardy.
“He was neither convicted nor acquitted in the first proceeding. The case was dropped,” Miller said. “The prosecutor then has the sole authority to bring it up again, since double jeopardy never attached to the case.”