Illinois appeals court upholds Jussie Smollett's disorderly conduct conviction

ByMaher Kawash and ABC7 Chicago Digital Team WLS logo
Friday, December 1, 2023
Appeals court upholds Jussie Smollett's disorderly conduct conviction
Actor Jussie Smollett's conviction in a hate crime hoax was upheld by an Illinois appeals court Friday.

CHICAGO (WLS) -- An Illinois appeals court upheld actor Jussie Smollett's disorderly conduct conviction in a ruling announced Friday.

The court voted 2-1 in favor of upholding the conviction.

The video in this story is from a previous report

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In 2021, the former "Empire" TV star was convicted of faking a racist and homophobic attack in 2019, and then, lying to police about it. His attorneys appealed that conviction, arguing that he should not have been punished for the same crime twice.

Back in 2019, he and Cook County State's Attorney Kim Foxx had reached an agreement to drop the charges against him in exchange for $10,000 bond and community service. The special prosecutor was then appointed in 2020.

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Smollett's lawyers claimed his conviction violated his fifth amendment rights against double jeopardy, which is a legal protection against a person being punished for the same crime twice.

The special prosecutor disagreed with their premise, arguing that Smollett did get due process and was never prosecuted in the 2019 case, adding that the agreement for his release included an understanding that he could be re-charged for the original crime.

Special Prosecutor Dan. K. Webb said he took on the pro-bono case in hopes of restoring the public's faith in the Cook County justice system.

"I was very confident going to the Illinois Appellate Court. I did not think Smollett's issues raised on appeal had any merit."

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

Smollett's attorneys added that the special prosecutor, who they say never should've been appointed, also did not turn over important evidence to the defense team from an hour's long discussion with the Osundairo brothers.

ABC7 legal analyst Gil Soffer said the ruling was a strong win for the special prosecutor, considering all the arguments raised by the defense.

"The defense of Jussie Smollett threw the kitchen sink at this case, argued everything from undue COVID restrictions to inappropriate comments made from the bench during the trial," Soffer said. "Lots and lots of arguments, every one of them flattenly rejected."

The ruling means Smollett must finish his entire 150 day jail sentence for the crime. He served six days before being released last year.

Smollett's team may exhaust one more legal effort if they ask the Illinois Supreme Court to hear the case.

"The Illinois Supreme Court process is really the end of the road for him and it's not likely to give him much success," Soffer said. "It's pretty hard to get a hearing before the Supreme Court and even harder to win ultimately when you're there."

Smollett's legal team has not yet responded to ABC7's requests for comment.

Special Prosecutor Webb issued a full statement on the ruling Friday:

"As the appellate court noted, Mr. Smollett 'challenge(d) virtually every aspect of' the prosecution, and the appellate court correctly rejected each and every one of those challenges. Today's decision is a validation of Winston & Strawn's tireless work on this matter and a resounding victory for justice. We are proud to have prevailed in a case that, we believe, can help restore the public's confidence in the Cook County justice system.

"When Judge Michael B. Toomin appointed me as Special Prosecutor in the Smollett case, the firm debated internally and determined that taking the case-and doing so pro bono with no compensation to the firm-was simply the right thing to do. It was a unique opportunity for a major law firm to give back to a community whose faith in the local justice system had been shaken by how poorly the Cook County State's Attorney's Office (CCSAO) had first handled the Smollett matter. Winston & Strawn has always had a deep dedication to pro bono service, and this appointment was one more way we could serve our community and restore the public's faith in the state's criminal justice system."

"Our lawyers devoted over 4 years and more than 15,000 hours examining the original Smollett investigation and bringing renewed charges against him. After that worthwhile effort yielded a conviction on five counts of felony disorderly conduct at the trial level, we could not be more gratified that justice has been served once again.

"The appellate court's decision affirms that the appointment of a Special Prosecutor to investigate Mr. Smollett's staged fake hate crime was justified. As the court also concluded, the record clearly established that Mr. Smollett did not enter into a non-prosecution agreement with the CCSAO that barred another prosecution for the same offense. In fact, the appellate court held that there was 'no ambiguity' as to what occurred between Mr. Smollett and the CCSAO, which 'only agreed to nol-pros the charges against Smollett.' Given the absence of a non-prosecution agreement, the appellate court correctly found that 'reprosecuting Smollett was not fundamentally unfair.' We respectfully disagree with the dissenting justice's opinion and its conclusions, which the appellate court noted were unsupported by the trial court record and Illinois law.

"I want to provide a special thanks to Deputy Special Prosecutors Sean G. Wieber, Samuel Mendenhall, and the entire team at Winston & Strawn who assisted in this matter, for all of their dedication and efforts over the years that has led to this result. We hope this decision will reassure the community that our legal system is fair, just, and impartial."