CHICAGO (CBS) — Former “Empire” actor Jussie Smollett lost his bid to have new disorderly conduct charges thrown out, after a Cook County judge ruled Friday the case does not violate his protection against double jeopardy.
Earlier this year, Smollett was indicted on new charges accusing him of filing false police reports claiming he was the victim of a racist and homophobic attack in January 2019. A special prosecutor announced the new indictment months after Cook County dropped the original 16 counts of disorderly conduct against Smollett.
On Friday, Smollett’s attorneys argued since he performed 16 hours of community service and forfeited his $10,000 bond in the original case, he already was punished.
However, Judge James Lin ruled, because Smollett’s original case never went to trial, and was dismissed without a guilty plea, the fine and community service do not count as punishment. He also noted another judge ruled the original case against Smollett was void, after determining Cook County State’s Attorney Kim Foxx improperly recused herself and appointed a top deputy to prosecute the case.
Judge Michael Toomin last year 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.
Special Prosecutor Dan Webb, whom Toomin appointed to re-investigate the entire case, later sought an indictment against Smollett, and a grand jury approved six counts of disorderly conduct against Smollett.
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.
Smollett has pleaded not guilty, and has maintained his innocence. His next court date is set for July 17.