CHICAGO — Shortly after being ordered into custody to begin serving 150 days in jail on Thursday, actor Jussie Smollett finally started to speak.
He was innocent, he said. He was not suicidal. Then the former “Empire” actor stood up at the defense table and began talking directly to Judge James Linn, something he’d declined to do during the hearing.
“I respect you, your honor,” Smollett said, his voice rising as he gestured with his hands as though he wanted to say more. “I respect your decision. Jail time? I am not suicidal. ... If anything happens to me in there I did not do it to myself!”
As Smollett’s attorney tried in vain to get the judge to stay his decision, Smollett was slowly surrounded by sheriff’s deputies before being led from the courtroom, pausing to pump his fist in the air as he disappeared from view into a rear lockup.
With that, Smollett’s case, undoubtedly the most high-profile Class 4 felony to ever be tried in Chicago, came to a dramatic end.
In issuing his sentence at the conclusion of a marathon, five-hour hearing, Linn said Smollett’s decision to orchestrate a hoax hate crime on himself on a frigid night in downtown Chicago three years ago read like a bad movie script, one where Smollett invented the plot, hired the actors, chose the time and location provided props, and even rehearsed the racist and homophobic lines.
What bothered the judge the most, he said, was the motive. Smollett’s crime wasn’t one of passion or opportunity, but a deliberate attempt to concoct a story so shocking that it would give him the limelight he desperately wanted, according to Linn.
“You wanted to make yourself more famous,” Linn said. “And for a while it worked. The lights were on you. You were actually throwing a national pity party for yourself.”
The judge also ripped Smollett for doubling down on his lies at trial, when he took the witness stand in “the capper of all cappers” and lied to the jury “for hours upon hours.”
In addition to the five months behind bars, which will be served in Cook County Jail, Linn sentenced Smollett to three years of probation and ordered him to pay $130,160 in restitution to the city to cover the more than 1,000 hours in police overtime it took to investigate Smollett’s false hate crime report.
Linn’s decision to lock up Smollett came at the end of his lengthy oral ruling and seemed to shock Smollett’s relatives in the courtroom gallery. Afterward, in the lobby of the Leighton Criminal Court Building, Smollett’s sister and two brothers told reporters they still believed in his innocence.
Smollett’s younger brother, Jacqui, shouted that his brother “is now going to jail for being attacked.”
“Do you know how crazy that is?” he said. “That judge chastised him! He chastised my brother! He does not deserve this. He’s in jail for five months. That is unacceptable. He is a survivor and he is being completely mistreated, and this has to stop.”
Smollett was found guilty by a jury in December on five of six counts of disorderly conduct alleging he falsely reported to police that he was a victim of a hate crime in 2019.
Smollett told the jury that he was attacked near his Streeterville condo at 2 a.m. on one of the coldest nights in years by two men who shouted racist and homophobic slurs, put a makeshift noose around his neck and poured bleach on him.
That story unraveled, however, after two of Smollett’s acquaintances, brothers Abel and Ola Osundairo, told investigators that Smollett had paid them $3,500 to carry out the fake attack, apparently because Smollett was upset that a threatening letter sent to the “Empire” studio had not been taken more seriously.
“Mr. Smollett, I know that there is nothing that I will do here that will come close to the damage that you’ve already done to your own life,” Linn said. “You’ve turned your life upside down by your misconduct and your shenanigans.”
But in the end, the judge said jail time was warranted because of the serious damage he’d inflicted on the city as well as the true victims of hate crime.
While special prosecutor Dan Webb did not recommend a specific term behind bars, he said Smollett’s “serious criminal conduct” surrounding the case coupled with his decision to take the witness stand and lie to a Cook County jury meant that prison time was warranted.
“Mr. Smollett made the choice that he could deceive that jury, and he went on the stand and lied to them about so many different things,” Webb said in his argument earlier Thursday. “It was a ridiculous story.”
Webb also said that in the three years since the January 2019 attack, Smollett has never once apologized for the impact his crime had on the city or the victims of real hate crimes who have trouble getting police to believe them.
In an animated argument, Smollett attorney Nenye Uche argued for leniency, saying that Smollett has suffered enough from the intense negative publicity and damage to his reputation for the past three years. He was “shocked” that Webb asked for incarceration, he said.
The prosecution’s proposed sentence is “overkill, it’s all punitive,” Uche says. “And that is not justice, that’s retribution.”
Linn should adopt the $10,000 bond forfeiture from Smollett’s previous case as his sentence in this case as well, indicating that anything else would be double jeopardy: “You can’t punish a person twice.”
And given the COVID-19 pandemic, a jail sentence could be a death sentence, Uche said.
“We send Mr. Smollett, he dies of COVID, and for what, a low-level Class 4 offense?”
The arguments came as Smollett returned to Cook County court Thursday for the first time since his media-firestorm trial and conviction last year.
Smollett’s family members and supporters crowded into two rows in the gallery. The former “Empire” actor himself arrived in court about 1:15 p.m., and stood alone with his back to the courtroom while attorneys met in Linn’s chambers.
Prosecutors read portions of a letter from Chicago police Superintendent David Brown and an attorney from the city’s Law Department, noting the “tremendous chilling effect” that false hate crime reports can have on real victims.
The defense then presented several witnesses who spoke about Smollett’s character. Sharon Gelman, who worked with Smollett at the nonprofit Artists for a New South Africa, described him as hardworking and enthusiastic about charitable work.
“He was one of the rare people who had the gift of making hard work fun,” she said.
Smollett’s older brother, Joel, told the judge that while his brother may have been convicted of a low-level felony, “to us this has felt like the reincarnation of Al Capone’s trial.” He then turned to prosecutors and said his family didn’t need to be lectured about race relations.
Joel Smollett said the “gut-wrenching and stomach-turning” punishment his brother has already received is enough. He told the judge Jussie has been in a “pseudo-form of house arrest” since 2019, “in essence quarantine almost a year before the COVID pandemic even began.”
Smollett’s 92-year-old grandmother, Molly Smollett, took the stand and described Smollett as a “justice warrior” with a generous spirit.
“The Jussie I know and love does not match up with the media’s betrayal of him,” she said, urging the reporters in the room to perform better investigative journalism.
“Jussie is loved and respected by all that know him, and I ask you, Judge not to send him to prison,” she said. “If you do, send me along with him, OK?”
Smollett’s attorneys then read into the record some of the letters written to Linn in support of Smollett, including some from luminaries such as the Rev. Jesse Jackson, actors Alfre Woodard and Samuel L. Jackson, and the head of the NAACP. All spoke highly of Smollett’s character and called on Linn to avoid a prison sentence.
On the bench, Linn scowled and shook his head during the reading of some of the letters, at one point putting his head in his hand and frowning.
The hearing began with about an hour and a half of arguments on Smollett’s request for a new trial, which Linn ultimately denied.
“We’ve talked about this for two years. I do believe that at the end of the day, Mr. Smollett received a fair trial,” Linn said.
Defense attorney Tina Glandian had asked Linn to throw out the jury’s verdict. Such arguments are common before sentencing, but are granted extremely rarely.
Glandian accused prosecutors of leaning on multiple witnesses who may have been favorable to the defense. In particular, one witness testified he was “pressured and threatened” by prosecutors to say he may have been mistaken when he said he saw a white man in a ski mask running away at the time of the attack. That testimony would have corroborated Smollett’s account that one of his assailants had light skin.
In addition, Smollett’s second prosecution was fatally flawed, and should never have been brought in the first place, Glandian said. There were no valid legal grounds to appoint a special prosecutor in the Smollett case, she argued. And Smollett’s first agreement with Cook County prosecutors — 15 hours of community service and the forfeiture of his $10,000 bond — protects him from a second prosecution.
“His due process rights have been violated as a result of the (second) indictment, because he was promised not to be hauled back into court and that’s exactly what happened to him,” Glandian said.
The defense attorneys also should have had a chance to question potential jurors, Glandian argued. That would have been a break from Linn’s usual trial practice, in which he is the only person asking questions, but Glandian argued that the overwhelming negative publicity brought Smollett into court with a “presumption of guilt,” and so attorneys should have been able to participate in the process more actively.
Linn broke in during her argument and asked if she was saying he should have asked jurors every single question the defense proposed.
“You wanted me to ask the (potential jurors) ‘What kind of animal would you like to be?’ ” Linn said. “Or, ‘Superman or Batman, what do you prefer?’ You really think I was supposed to ask (that)?”
In response, attorney Sean Wieber, a member of special prosecutor Webb’s team, said that none of the issues raised by the defense rose to the level of serious trial error, and some were head-scratching at best.
Wieber said in particular that Smollett’s attorneys accusing prosecutors of improperly excluding Black jurors was just the latest in repeated attempts by the actor and his supporters to “interject and weaponize race and sexual orientation into this case” and is completely without merit.
Wieber said Smollett has tried to blame everyone for his conviction, including the police, the media, the judge, the entire Cook County justice system, political figures, witnesses at trial, COVID-19 and even the jury itself.
“Page after page after page of finger-pointing” that should be ignored, Wieber said.
In response to Smollett’s comments about not being “suicidal” the Cook County sheriff’s office said in a statement Thursday that he “will be given a comprehensive medical, mental health, and security assessment and will be placed in appropriate housing.”
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