Double jeopardy? Jussie Smollett's attorneys appeal 'Empire' actor's sentencing

Jussie Smollett refused to eat, only drank water while in protective custody, attorney says

Thursday, March 17, 2022
Double jeopardy? Jussie Smollett's attorneys appeal 'Empire' actor's sentencing
"Empire" actor Jussie Smollett was released from jail while his attorneys appeal his sentence on multiple disorderly conduct convictions.

CHICAGO (WLS) -- Jussie Smollett was released from Cook County Jail Wednesday after an appeals court agreed with his lawyers that he should be released pending the appeal of his conviction for lying to police about a racist and homophobic attack.

The ruling came after a Cook County judge sentenced Smollett last week to immediately begin serving 150 days in jail for his conviction on five felony counts of disorderly conduct for lying to police. The appeals court said Smollett could be released after signing a personal recognizance bond of $150,000, which did not require any money be paid.

WATCH: Jussie Smollett walks out of Cook County Jail

Jussie Smollett walked out of Cook County Jail Wednesday night flanked by his security team.

The 39-year-old walked out of the jail shortly after 8 p.m., past a gaggle of gathered media and accompanied by security and two of his siblings, without saying a word.

A three judge appellate court panel voting 2-1 to let him go after Smollett's attorneys argued, he'd be done serving his 150 day sentence by the time the appeals process is complete. An appeal can generally take months, if not years to be resolved.

"I'm happy that he's out and there has been this reprieve," Smollett's brother, JoJo, said "I am still concerned because there are still the legal challenges that he faces, but I'm really, really happy with the appeal process going our way right now."

Both the Mayor's and State's attorney's office declined to comment on the release today.

His defense team lauded the appellate court's decision to release him, and one of his lawyers told ABC7 Thursday that Smollett is still in Illinois and planned to help his family and legal team work on his appeal.

"He's doing well. Trying to you know, reengage back," JoJo, said. "He's so happy to at least be able to connect with family. He's not out of the woods."

It was not known if Smollett would have to stay in Cook County or Chicago; previously, Judge James Linn had said during his post-jail probationary period he would be allowed to leave the state and check in with his probation officer remotely.

WATCH: Jussie Smollett's defense attorneys speak after release

Jussie Smollett's attorneys speak after his release from Cook County Jail Wednesday night.

Smollett's family is relieved.

"It's unbearable for family members to see loved one going through this, just to let him get out of that situation, I'm grateful to God for it," JoJo, said.

Smollett spent six nights in jail. In that time, his attorneys said the actor did not eat anything, but only drank water.

WATCH: Legal analyst weighs in on how Jussie Smollett got out of jail

A legal analyst is weighing on on how actor Jussie Smollett got out of jail after just 6 days.

"As far as we can tell right now, he was really just put off eating and, to be honest, I don't blame him," said Smollett's attorney, Heather Widell. "He wasn't in any harm. He didn't lose any significant amount of weight. He came out. He's OK."

His attorneys said the actor broke down when they gave him the news he'd be freed.

"He pushed his hands on the glass and he was, his eyes got teary and I've never seen that, because he's been very strong in there," said attorney Nenye Uche. "And he said, 'I nearly lost hope in our constitutional system.'"

Part of his attorney's argument was that Smollett could be in danger of physical harm if he remained locked up in Cook County Jail.

Smollett's appeal is also based, in part, on the idea that the actor's sentence violates the concept of double jeopardy because he already surrendered a $10,000 bond and performed community service back in 2019. However, prosecutors said those were measures he agreed to voluntarily and therefore did not constitute punishment.

RELATED: Jussie Smollett in 'psych ward' with 'no special treatment,' family says after receiving threats

Smollett was sentenced to 30 months' probation for lying to police about staging a hate crime attack against himself in Chicago, with the first 150 days of the sentence in Cook County Jail. With good behavior he could have been released in 75, but instead, he was released after less than a week.

"I think we're here because an appellate court realized this was the right thing to do. I hope everyone realized that the persecution that went on in that courthouse was absurd," said attorney Shay Allen.

Jojo Smollett reacted to his brother's release from jail Wednesday night.

Both the mayor's and state's attorney's office declined to comment on the release Thursday.

The court's decision marks the latest chapter in a strange story that began in January 2019 when Smollett, who is Black and gay, reported to Chicago police that he was the victim of a racist and homophobic attack by two men wearing ski masks. The manhunt for the attackers soon turned into an investigation of Smollett himself and his arrest on charges that he'd orchestrated the attack and lied to police about it.

The investigation revealed Smollett paid two men he knew from work on the TV show "Empire" to stage the attack.

SEE ALSO | Jussie Smollett begins serving 150-day jail sentence as attorneys request release during appeal

A jury convicted Smollett in December on five felony counts of disorderly conduct - the charge filed when a person lies to police. He was acquitted on a sixth count.

WATCH: Legal analysis of Smollett's release and appeals process

ABC7 Legal Analyst Gil Soffer discusses the court's decision to release Jussie Smollett from jail pending the appeal of his conviction.

"The appellate court will take its time," said ABC7 legal analyst Gil Soffer. "It will consider the briefs that are submitted to it and will make a judgement about two things: one, should it reverse the conviction? And two, even if the conviction stands, was the sentence appropriate?"

But is Smollet ready to go back to jail, should the appeal not go his way?

"He's prepared, but he's very strong," Widell said. "He's strong-willed. He knows that if this goes the wrong way, he will have to serve the rest of his sentence."

Smollett maintained his innocence during the trial. During sentencing he shouted at the judge that he was innocent, warning the judge that he was not suicidal and if he died in custody it was somebody else, and not him, who would have taken his life.

WATCH | Jussie Smollett's emotional outburst in court

Jussie Smollett had an emotional outburst in a Chicago court room after he was sentenced, yelling "I am not suicidal!"

Cook County Judge James Linn also ordered Smollett to pay $120,106 restitution to the city of Chicago and a $25,000 fine.

Moments after learning he'd be heading straight to jail, Smollett declared "I am not suicidal!" and "I did not do this!" with one fist in the air as he was taken into custody and removed from the courtroom.

Linn excoriated Smollett prior to handing down his sentence for what he referred to as "misconduct and shenanigans."

"I'm going to tell you Mr. Smollett, I know that there is nothing that I will do here today that will come close to the damage you've already done to your own life," Linn said.

In considering the sentence, Linn said Smollett's "extreme" premeditation of the crime was an aggravating factor. He also said the actor had denigrated the experiences of real hate crime victims, calling him a "charlatan" and a liar.

"You got on the witness stand. You didn't have to. You did. You certainly had a right to. But you committed hour upon hour upon hour of perjury," Linn said.

WATCH | Judge Linn's full sentencing remarks

Cook County Judge James Linn's full remarks at Jussie Smollett's sentencing for disorderly conduct.

After court, Smollett's family was visibly upset, expressing disappointment that Smollett received jail time and continuing to defend his innocence.

"I watched my brother go from being a complete victim, which he still is. He was attacked, and he is now going to jail for being attacked," said Jocqui Smollett, his youngest brother. "He is a survivor and he has been completely mistreated. This has to stop!"

Smollett's defense attorneys were also incensed.

"I have never seen, in my entire career as an attorney, and none of the other attorneys here have ever seen a situation in which a Class 4 felony gets the same treatment as a violent offense," said defense attorney Nenye Uche.

After a long investigation and years in court, Smollett was convicted of five of six felony counts of disorderly conduct for lying to police. He faced a maximum sentence of three years in prison for all counts.

"These are very low-level crimes and it would be extraordinary in a normal case for someone with no meaningful criminal history to face jail time on these crimes, but this is not the normal case," said ABC Legal Analyst Gil Soffer.

WATCH | Key moments in Jussie Smollett case

Here's a look at the events leading up to Jussie Smollett's trial and conviction on disorderly conduct charges in Chicago.

Soffer said if Smollett violates the terms of his release, he could go back to jail, but that's not likely.

Several big names came to Smollett's defense, writing letters to the judge asking for leniency.

RELATED: Jussie Smollett trial's only Black juror found case 'sad,' still wonders about motive

Among them was the Rev. Jesse Jackson, writing in part that "Jussie has a long track record of being a deeply engaged and contributing citizen" and that "Jussie has already suffered."

WATCH: Jussie Smollett's attorney says actor in Illinois after release

Jussie Smollett's attorney said the actor is in Illinois after his release from jail.

Actor Samuel L. Jackson and his wife, actress LaTanya Jackson, also wrote the judge a letter, saying in part, "I humbly implore you to please find an alternative to incarceration."

When asked for comment, Cook County State's Attorney Kim Foxx's office said "we are focused on violent crime."

Statement from Nenye Uche, Jussie Smollett's attorney, in response to the Appellate Court ruling:

"We are very happy with the ruling made by the Illinois District Appellate Court. We are pleased that sensationalism and politics will be put aside and we can finally have an intellectual discussion about our laws with our esteemed appellate court.
"Three years ago, Jussie and the State of Illinois reached a deferred prosecution agreement in which he paid a ten thousand dollar fine and performed community service. As a result, the case was dismissed.
"To be recharged and prosecuted for the exact same thing, a second time, is not just morally wrong, but certainly double jeopardy and thus unconstitutional. Especially as it concerns an innocent man."

The Associated Press contributed to this report.