Jussie Smollett trial: Defense rests after 'Empire' actor takes stand: 'There was no hoax'

Jussie Smollett siblings: 'Empire' star spoke of family, also said he and man accused in attack, Abimbola Osundairo, were romantic

Wednesday, December 8, 2021
Jussie Smollett trial: Defense rests after 'Empire' actor takes stand
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The Jussie Smollett testimony continued Tuesday as the "Empire" actor took the stand in his own defense in his Streeterville attack case.

CHICAGO (WLS) -- Former "Empire" actor Jussie Smollett returned to the witness stand Tuesday in his own defense and his defense team rested their case after questioning another witness.

Closing arguments are set to begin Wednesday morning and after that, the case will be given to the jury. They will decide if the prosecution made its case to prove Smollett lied to Chicago Police officers about an alleged hate crime.

The only person in the world who can get up on the witness stand and refute that is Jussie Smollett., and convince the jury that what he told the police what he believes happened to him," said Andrew Weisberg, criminal defense attorney and former prosecutor. "He's a good looking guy. He knows how to speak in front of people, so he can make a good presentation."

While Smollett was on the stand, Special Prosecutor Dan Webb focused on what happened in the days leading up to the alleged attack.

Webb began on Jan. 27, 2019, when Smollett admits to picking up his friend, Bola Osundairo, and his brother, Ola, from Bola's Lakeview home.

Prosecutors said that's when Smollett did the dry run, planning where the alleged attack would take place in Streeterville.

Though, Smollett said he picked up Bola to work out at his apartment in Streeterville, saying "He was my trainer."

But instead of working out, Smollett said he and Bola drove around smoking marijuana, while Ola said nothing during the drive.

He said he chose not to work out because he felt uncomfortable that Ola was with them.

Then prosecutors focused on the evening of Jan. 28, a day before the alleged attack, when Smollett's flight from New York to Chicago was delayed.

He admitted to contacting Bola Osundairo several times to let him know his flight was delayed but not because the alleged attack had to be pushed back. He said it was because the two of them planned to work out when he returned.

He adamantly denied planning the attack on himself with the help of the two brothers, and acknowledged he told CPD officers the attackers were white but then later described them as "pale."

Webb asked Smollett about a Robin Roberts interview in which he said, "If (I) described the attacker as a Muslim or Black, I wouldn't have so many people questioning me about it," and Smollett confirmed he did make that remark.

He finished testimony about noon Tuesday. An Uber driver was called to testify next before the defense rested.

On Monday, he told jurors that claims he staged an anti-gay, racist attack on himself are "100% false."

Smollett answered the big question many had Monday by taking the stand in his own defense in day six of his trial on the alleged fake Streeterville attack from January 2019. He testified for almost six hours at the Leighton Criminal Courthouse Monday.

Taking the stand around noon that day, Smollett, who is one of six children in his family, testified about growing up doing commercials as a child actor. He said at 8-years-old, his family moved to Los Angeles where he eventually focused on music.

WATCH: Legal expert weighs in on Jussie Smollett testifying

He also described how as a young adult he would often take the bus to work as a waiter, in retail and also as a clown. Smollett said he would also live in Europe for months at a time while trying to work in clubs as a musician, "and kept on trying."

He testified to jurors that in 2014, after a message via social media to Lee Daniels and seven auditions, he landed the role of Jamal Lyon on "Empire." He also talked about the pressures of playing the first openly gay African American male character on a hit TV show and the negative comments on social media.

"It got to me," he testified.

Prosecutors contend the former "Empire" star was upset his TV studio didn't take seriously a threatening letter he'd reported, and so he hatched a plan for the fake attack.

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But Smollett testified the studio, in fact, wanted to hire security for him and he turned it down because it was too intrusive.

Smollett testified Bola Osundairo continually suggested he should be the actor's bodyguard -- an idea Smollett rejected.

Smollett testified that he and Osundairo sometimes became romantic.

WATCH: Jussie Smollett case 'has been incredibly painful,' brother says

On at least two occasions at a Boystown bath house, he said they kissed in a private room.

Osundairo testified last week he's straight and there was no romantic relationship.

Smollett testified he often smoked marijuana, in part to cope with the stress of the show. He said he would often drive around with Osundairo, smoking pot in the car, as a way to relax.

"Did you talk to him about some hoax?" his attorney asked.

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"No," Smollett said. "There was no hoax."

Under cross-examination by special prosecutor Dan Webb, Smollett denied he refused to give his phone to police because messages could connect him to the Osundairos.

And as for why he initially refused to give police his DNA, Smollett said, "I don't even do Ancestry.com."

Smollett denied manipulating the rope that Ola Osundairo testified he was unable to get around the actor's neck.

"You put it around your neck," Webb said.

"No, Mr. Webb, I did not," Smollett said.

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During the trial that started last Monday, what emerged was the story of a television star who cast two brothers as his attackers, gave them dialogue to recite, and paid for the rope he told them to fashion into a noose and loop around his neck.

As strange as that sounds, it is the only narrative that has come to the jury from the siblings, Abimbola and Olabinjo Osundairo, known as Bola and Ola. And some legal experts say the only chance Smollett has of beating charges that he lied to the police is by telling jurors his version of what happened on Jan. 29, 2019.

Last week Osundairo and his brother testified that Smollett asked them to fake an attack while shouting a homophobic slur.

The brothers were aspiring actors and told the jury they went along with plan in hopes Smollett could help their careers. The brothers testified separately that the Smollett gave them $100 cash for supplies and a check for $3500.

The jurors saw surveillance video of the brothers a buying items before the alleged attack.

A family friend, who is the sister of activist Angela Davis, read a statement before the cameras Monday, saying Smollett is the victim of character assassination that has impacted his opportunities.

"We look forward to the jury deliberations.... and look forward to his full vindication," Davis said.

What to expect from Jussie Smollett trial

Terry Ekl, a prominent Chicago-area defense attorney not involved in the case, and other legal experts said jurors are not supposed to read anything into a defendant's decision not to testify but that when they return to the deliberation room they often do just that.

As to the importance of a defendant testifying, legal experts said one need look no further than the recent trial in Kenosha, Wisconsin, where Kyle Rittenhouse was acquitted of all charges after he testified that he fatally shot two men and wounded another because he feared for his own life.

"They won the case by putting him on," said Kathleen Zellner, a Chicago area defense attorney. "The jury believed him."

Another reason why Smollett might have wanted to testify: He should be good at it.

SEE MORE: Jussie Smollett trial: Prosecution rests case after star witness testimony from Osundairo brothers

"He's an actor. He should be testifying," Chicago-based defense attorney Joe Lopez said.

David Erickson, a former state appellate judge who teaches at Chicago Kent College of Law, said that when he teaches trial advocacy, he makes it clear from the outset that jurors vote for people they like. Right now, he said, he's sure they like the special prosecutor, Dan Webb. "Dan Webb is Everyman, he seems like a nice guy, a good next-door neighbor."

But testifying could pose all sorts of problems for Smollett, starting with his need to explain how the brothers knew they would run into him in the dead of a brutally cold night in an unfamiliar neighborhood as he returned from a sandwich shop. Unless he told them he would be there.

Also, if he's convicted, Smollett's words could land him in yet more trouble.

"You can't be penalized (by a judge) for not testifying but if he takes the stand and the judge believes he perjured himself, he can add (jail or prison) time," said Erickson.

Smollett, 39, is charged with six counts of felony disorderly conduct for making what prosecutors say was a false police report about the alleged attack - one count for each time he gave a report - to three different officers. The class 4 felony carries a prison sentence of up to three years, but experts have said if Smollett is convicted he likely would be placed on probation and ordered to perform community service.

Smollett has pleaded not guilty.

The case could go to the jury Wednesday.

Associated Press contributed to this report.