CHICAGO — In a scathing ruling that was to send Jussie Smollett to jail for the first few months of his probation sentence, Cook County Judge James Linn last week told the convicted actor that “sometimes the hammer of justice has to fall.”
Less than a week later, an Illinois appellate court lifted Linn’s hammer back up — at least partially. Smollett walked out of custody Wednesday evening after two appeals court judges agreed his 150-day jail sentence should be put on hold while his appeal is pending.
That decision, however, applied only to Smollett’s jail sentence, which Linn had ordered would begin immediately, perhaps anticipating the appeal move and ensuring Smollett spend at least some days behind bars. The actor still must serve the 30-month probation term while his case makes his way through the higher courts, and he is still on the hook to pay more than $120,000 in restitution, according to his legal team.
The conditions of Smollett’s probation are relatively lenient. He can travel without restriction and may report by phone instead of showing up in person, Linn said last week.
Meanwhile, the restitution money is not due for 30 months, according to his defense team, and the appeals process may well have run its course before then. In general, appeals can take months if not years to fully resolve, especially if efforts are made to take them beyond the appellate level to the state Supreme Court.
In comments to reporters outside the jail after Smollett’s release, defense attorneys said they were eager to launch their appeal in earnest.
In the coming months, the higher court could read and consider briefings from both sides, and may request to hear oral arguments before making a decision. Smollett will of course stay free at least until then.
“We have real, definitive issues for appeal, and that’s why (the appellate court) made the decision that they made,” attorney Tamara Walker told reporters.
A jury convicted Smollett late last year on low-level felony charges alleging he lied to police after staging a phony hate crime attack on himself. He was sentenced at a dramatic hearing last week, which ended with Smollett loudly proclaiming his innocence and raising his fist in the air as he was led into custody.
The one-page order issued by the Illinois Appellate Court stated that Smollett was to be released from Cook County Jail after signing a $150,000 recognizance bond, which would not require him to post any money.
The three-judge panel was split 2-1, with Justices Thomas Hoffman and Joy Cunningham agreeing to grant the motion. The only explanation offered in the order was that Smollett has never been convicted of a violent offense and would have completed his sentence of incarceration well before his appeal is decided.
In dissent, Justice Maureen Connors wrote only that she would “deny this motion.”
Smollett’s case has an unusually complicated history, meaning there are many potential arguments to explore on appeal.
Wednesday night outside the jail, Smollett’s attorneys focused largely on an argument that Smollett’s second prosecution violated his rights against double jeopardy.
“In this country, you cannot punish a person twice, and while everyone was focused on the sensationalism surrounding this case, people were not focused on the constitutionality of the prosecution,” attorney Nenye Uche said. “It is unconstitutional to charge someone twice.”
Smollett was initially charged by the Cook County State’s Attorney’s office in February 2019. However, the 16-count indictment was dismissed without notice the next month, in exchange for Smollett’s agreement to forfeit his $10,000 bond money and in acknowledgment of community service he had performed.
The abrupt dismissal in such a high-profile case led to great confusion and proved to be fertile ground for conspiracy theories. At the request of a former appellate judge, a special prosecutor was appointed to determine if Smollett should be charged again and investigate whether there was any wrongdoing in Cook County prosecutors’ handling of the case.
The entirety of the first prosecution was invalid, Judge Michael Toomin ruled, since State’s Attorney Kim Foxx had not properly recused herself from the first proceedings.
Special prosecutor Dan Webb brought Smollett up on new charges in early 2020. Foxx has defended her office’s handling of the case and has been critical of Smollett’s sentence.
Smollett’s team has already tried to get Cook County courts to throw out Smollett’s second case thrown out on double-jeopardy grounds. Legal experts have speculated that the argument would have little chance of success; double-jeopardy protections generally only kick in once there is a guilty plea or a trial has begun. And Toomin’s ruling voided the entire first prosecution start to finish.
However, Smollett’s attorneys have recently stated that the $10,000 Smollett paid in his first case qualifies as punishment, and any further punishment on top of that would violate his rights.
Potentially complicating the matter: There was no judge’s order concretely defining the $10,000 as a fine or restitution, and Smollett’s prior legal team in 2019 denied that any quid pro quo deal was made with prosecutors, saying charges were dropped outright and Smollett voluntarily gave up the money simply so he could move on with his life.
Smollett’s attorneys have also recently argued that the initial dismissal of charges amounted to an immunity deal, or a contract with the state that the second prosecution violated.
Attorneys said Wednesday night they were hopeful that the higher court would focus on the legal issues, not the media firestorm or the potential politics of the high-profile case.
“There is no room for politics in our court system, and our appellate courts in this great state do not play politics,” Uche told reporters.
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