Former “Empire” star Jussie Smollett could be taken into custody after his sentencing hearing on Thursday — or allowed to walk out of a Cook County courtroom with an order to perform community service.
Smollett, 39, faces a maximum three-year prison sentence for his conviction on disorderly conduct charges that stemmed from a hoax racist and homophobic attack against the actor in 2019 that Smollett was accused at trial of orchestrating.
But Judge James Linn could also decide to release the former actor on probation.
While the latter would seem more likely given that the nonviolent charges and Smollett’s lack of serious criminal background, defense attorney Kulmeet “Bob” Galhotra, who watched the trial closely, said he wouldn’t be surprised of Smollett got at least a little time behind bars to think about what he has done.
“I think Linn might give him a taste of jail,” Galhotra said. “That’s my prediction. I don’t think he’s going to send him to [prison], I think he might give him a taste of jail time and put him on probation with lots of community service.”
Galhotra said he expects special prosecutors will argue for a stiffer sentence for Smollett because of the actor’s denial that he was involved in the hoax when he took the stand during his trial.
“I have been questioned about many things. … I told the truth about everything,” Smollett claimed under cross examination.
The jury, however, didn’t believe it.
“When somebody testifies and a jury repudiates their testimony and doesn’t believe it ... whether or not a defendant lied in their testimony is a matter that can be used in aggravation,” Galhotra said.
Special Prosecutor Dan Webb seemed to indicate he planned to make that argument in his statements after Smollett’s verdict was delivered.
“Defendants do not have the right to go in front of a jury and lie under oath,” Webb told reporters.
Whether Smollett decides to make a statement before Linn sentences him could also be a factor in the judge’s decision.
If Smollett were to apologize and admit his mistakes, Galhotra said, the judge might also go easier on him.
City officials, including Chicago Police Supt. David Brown, have also asked Linn to order Smollett to pay more than $130,000 to the city to reimburse the cost of the “massive” investigation into Smollett’s allegations.
“The overwhelming stress and fatigue that was put on the Chicago officers who were involved in the case was immense and negatively impacted their health and wellbeing,” the letter from the city said
A restitution order would also let the city save the expense of continuing with their civil suit in federal court against Smollett to recoup the cost of the investigation, which has been stayed until after Smollett is sentenced.
In probably the most unlikely scenario, Smollett could leave the courthouse Thursday without being convicted at all.
In a filing last month, Smollett’s defense team asked Linn to set aside the jury’s verdict and change it to not guilty — a request that is rarely granted.
Among the defense’s arguments are that the jury’s split decision on their verdict — convicting Smollett on five counts, but acquitting him of a sixth — were legally inconsistent.
“You cannot say Jussie is not lying for the same exact incident,” Lead Defense Attorney Nenye Uche told reporters after the verdict was read.
A juror later told the Sun-Times the panel believed their were doing the actor “a favor” by finding him not guilty of the final count.
Richard Kling, a professor at the Chicago-Kent College of Law who followed the trial, disagreed with Uche’s assessment.
“This was not inconsistent. On five counts they found he was responsible, and the other one they were unsure” so they declined to convict, Kling said at the time.
Smollett’s attorneys will also be asking for a new trial Thursday, which will be argued before the sentencing portion of the hearing begins.
Last month, Linn ruled he would allow media cameras in the courtroom for the hearing, meaning the public will be able to watch the proceedings live this time.
The hearing is expected to start at 1:00 p.m.
