Illinois Supreme Court hears Jussie Smollett appeal

CHICAGO -- The Illinois Supreme Court heard arguments Tuesday in actor Jussie Smollett's appeal to overturn his conviction on disorderly conduct charges for falsifying a hate crime.

Smollett, who was an actor on the TV show "Empire," was improperly charged with the same crime twice, his legal team argued. The trial court was also "influenced by improper aggravating factors" when he was sentenced to jail, a $25,000 fine and to pay more than $120,000 in restitution for overtime expenses incurred by the Chicago Police Department, his team argued in the filing.

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In early 2019, Smollett made what turned out to be a false police report alleging that he'd been violently attacked by two men in downtown Chicago. The men allegedly punched him and yelled homophobic slurs, put a noose around his neck and told Smollett, "This is MAGA country," a reference to then-President Donald Trump's "Make America Great Again" slogan.

A month later, prosecutors charged Smollett with 16 counts of disorderly conduct for putting on the hoax with a pair of brothers he'd paid to perpetrate the attack.

Cook County State's Attorney Kim Foxx drew sharp criticism when her office suddenly dropped the charges, prompting the involvement of a special prosecutor who filed six new disorderly conduct charges in 2020. Smollett was convicted in 2021 and given a 150-day jail sentence, which has been put on hold as Smollett goes through the appeals process.

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In his appeal, Smollett argued that he should not have been charged again because he'd voluntarily forfeited his $10,000 bond after his arrest and done community service - things he claimed constituted a non-prosecution agreement and punishment.

As evidence, Smollett's team pointed to a 2019 court filing from Foxx's office that said it would drop the charges in part due to "Mr. Smollett's volunteer service in the community and agreement to forfeit his bond to the City of Chicago."

That statement was included in what's referred to as a nolle prosequi notice that the state was not planning to prosecute. The state's attorney's office said it constituted a "just disposition" of the case and it was accepted by a judge.

"In this particular case, the deal was not just there was an offer made. There was an acceptance, there was consideration, and it was executed," Nenye Uche, Smollett's lawyer, argued in court Tuesday.

Smollett's lawyers argue that when he was later charged by a special prosecutor, it was in violation of the Fifth Amendment's protections against "double jeopardy," or being punished for the same crime twice.

But Shawn Wieber, a deputy special prosecutor on behalf of the state, countered that a nolle prosequi decision does not "provide finality" in a case.

Bodycam video shows Jussie Smollett being taken into custody at Cook County Jail

"We're not running from the fact - the state is not running from the fact - that the nolle pros(equi) is a dismissal," Wieber said. "The question is, is it a dismissal with prejudice that precludes potential future indictment? And the answer is 'unequivocally no.'"

Smollett took his case to the Supreme Court after an appellate court ruled against his appeal in a 2-1 decision in December, finding the record did not support Smollett's claims that the nolle prosequi filing precluded further prosecution.

Much of the questioning from justices focused on the implications of what precedent a ruling in favor of the state would set. Justice Mary Kay O'Brien asked how it would affect state's attorneys' discretion.

"If the same situation were to arise somewhere else, you're saying that that discretion is going to be upended by the potential for a special prosecutor coming in, or special prosecution being commenced, which would, in circumstances like this, impede state's attorneys from exercising their discretion?" she asked.

Wieber said the precedent for ruling that the state has the authority to bring another prosecution dates back to 1985. He added it's because Smollett was not found guilty or sentenced for any offense.

"It's been 2,058 days since the underlying incident. I would respectfully suggest that this case must end," Wieber told the court. "I firmly believe that the facts support affirmance. I believe the law supports affirmance. I believe justice and fairness support affirmance. And, by the way, I think that's totally fine. He doesn't have anyone to blame but himself."

Wieber said Smollett "preyed upon society's empathy," seized upon the issues of race and sexuality and "blamed it all on his perceived opponents."

But Smollett's legal team made other arguments in its court filings as well - including that the types of sentiments shared by Wieber affected the fairness of the legal proceedings.

Smollett's sentencing, fine and restitution were all excessive because, his legal team argued, the "driving consideration" was "the significant public exposure he had attracted by his case."

Smollett also argued his legal team was improperly denied access to the government's interviews of the prosecution's star witnesses - the two brothers he'd allegedly paid to perpetrate the attack - and that he was improperly ordered to pay for police overtime as restitution.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of print and broadcast outlets statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, along with major contributions from the Illinois Broadcasters Foundation and Southern Illinois Editorial Association.