CHICAGO (CBS) — The Illinois Supreme Court on Thursday overturned former “Empire” actor Jussie Smollett’s conviction for orchestrating a hate crime hoax.
Smollett was convicted of five counts of disorderly conduct and sentenced to 150 days in jail in 2021, but was released after only six days behind bars while he appealed his case. Smollett has maintained his innocence from the beginning.
Smollett claimed he was the victim of a racist and homophobic attack near his Streeterville apartment in January 2019 after he walked several blocks for a Subway sandwich shop.
After police investigated his claims, detectives later focused on Smollett himself, and he was charged with staging a fake hate crime against himself with brothers Abel and Ola Osundairo, who later testified he paid them to stage the attack.
Defense attorneys had argued his trial violated his Fifth Amendment protections against double jeopardy, after Cook County State’s Attorney Kim Foxx’s office agreed to drop the original charges against him.
A special prosecutor, Dan Webb, was later assigned to reinvestigate the case, and brought a new indictment against him, but Smollett’s attorneys have argued that Webb never should have been allowed to bring new charges.
An attorney for Smollett is planning to address the development Thursday afternoon in Chicago.
How to watch press conference with Jussie Smollett’s attorney Nenye Uche
- What: Jussie Smollett’s lawyer Nenye Uche is holding a press conference after the Illinois Supreme Court overturned the convictions of actor Jussie Smollett
- When: Thursday, Nov. 21 at 3 p.m. CST
- Where: Chicago, Illinois
- How to watch: On CBS News Chicago via Pluto TV or the CBS News app, or on the CBS Chicago YouTube page
On Thursday, the state’s highest court sided with Smollett’s attorneys, reversing his conviction, and ordering the case against him dismissed.
“Today we resolve a question about the State’s responsibility to honor the agreements it makes with defendants. Specifically, we address whether a dismissal of a case by nolle prosequi allows the State to bring a second prosecution when the dismissal was entered as part of an agreement with the defendant and the defendant has performed his part of the bargain. We hold that a second prosecution under these circumstances is a due process violation, and we therefore reverse defendant’s conviction,” Justice Elizabeth Rochford wrote in the court’s ruling.
One of Smollett’s attorneys said they are “incredibly pleased” with the court’s ruling, saying “justice prevailed.”
In a statement, Webb said he was disappointed with the Illinois Supreme Court’s ruling, and disagreed with the court’s reasoning that dismissing the original charges precluded a new prosecution.
“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,” Webb said.
Cook County prosecutors dropped the original charges against Smollett weeks after he was charged, in exchange for him forfeiting his $10,000 bond and performing 16 hours of community service, but a judge later ruled that Cook County State’s Attorney Kim Foxx’s office mishandled the case and appointed a special prosecutor to review it.
That special prosecutor later brought a new grand jury indictment against Smollett, and he was convicted of five counts of disorderly conduct and sentenced to 150 days in jail. Smollett was also ordered to pay a $25,000 fine, and $120,106 in restitution to the city of Chicago. He served only six days of that sentence before he was released while he appealed his case.
Last December, an Illinois Appellate Court panel upheld Smollett’s conviction, siding with prosecutors who argued there was no evidence prosecutors had agreed not to prosecute Smollett further when the initial charges against him were dropped.
But Appellate Justice Freddrenna Lyle dissented in that ruling, arguing it was “fundamentally unfair” to appoint a special prosecutor to charge Smollett a second time after he’d entered an agreement he believed would end the case.
In reversing Smollett’s conviction, the Illinois Supreme Court agreed with defense attorneys that the special prosecutor’s decision to file new charges violated Smollett’s rights after the original case was dropped and Smollett agreed to forfeit his $10,000 bond.
“It defies credulity to believe that defendant would agree to forfeit $10,000 with the understanding that [prosecutors] could simply reindict him the following day,” the court’s ruling stated.
The Illinois Supreme Court remanded Smollett’s case back to the trial court to formally enter a dismissal of the charges.
“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,” the opinion stated. “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.”
CBS News Chicago legal analyst Irv Miller, a former prosecutor, said the court’s ruling is not surprising.
“I have to totally agree with what the Illinois Supreme Court did today, saying that when a prosecutor makes a deal, makes a promise in exchange for the defendant doing something like Mr. Smollett did – giving up his bond and doing community service – a bargain is a bargain, and if the prosecutor doesn’t keep that bargain, it violates a defendant’s due process rights,” Miller said.
Miller said the court’s ruling is unlikely to have any effect on a lawsuit that the city of Chicago filed against Smollett in 2019, seeking to force Smollett to reimburse the city more than $130,000 for the cost of the investigation into his hate crime claims, after police determined it was a hoax.
Smollett has countersued the city, accusing police of malicious prosecution.
“Frankly, this decision today by the Illinois Supreme Court really doesn’t affect that federal case whatsoever. It’s still going to go on to determine if, in fact, he made a false police report, and the city of Chicago, because of that, spent thousands and thousands of dollars in police overtime and salary in investigating the case.
In January 2019, the Smollett said he was beaten by two masked men who poured bleach on him, and hung a noose around his neck, while shouting homophobic and racist slurs, and told him “this is MAGA country.”
Chicago police have said, however, that Smollett paid the Osundairo brothers to stage the attack because he was upset with his salary on the Fox show “Empire.”
