Illinois Supreme Court to hear Jussie Smollett appeal

The Illinois Supreme Court has agreed to hear an appeal from Jussie Smollett, the former “Empire” actor whose convictions for staging a hate crime caused fevered international media attention.

This means that the case, which has continued as Smollett fights his convictions, will carry on a little longer.

A lower appellate court affirmed his convictions for falsely reporting a hate crime to Chicago police in January of 2019 even as Smollett alleged a laundry list of violations in the case handled by special prosecutor Dan Webb after the Cook County state’s attorney’s office controversially dropped all charges.

In a 2-1 decision, the appeals court judges largely rejected the arguments, though Judge Freddrenna Lyle dissented, arguing that “Smollett gave up something of value, community service and bond forfeiture, in exchange for a nolle of the whole indictment.”

After the decision, Smollett asked the state’s high court to hear the case, a decision up to the discretion of the judges. In asking the court to review his case, Smollett had argued that the lower court’s opinion “threatens to upend all informal and formal deferred prosecution agreements.”

The case stems from a report Smollett made to police in the early hours of Jan. 29, 2019, when he said two men attacked him in the Loop, hitting him, yelling homophobic slurs and placing a noose around his neck. But in a twist that drew frenzied international attention, prosecutors charged Smollett the following month with disorderly conduct for concocting the hoax with brothers Abimbola and Olabinjo Osundairo, who testified that he paid them to perpetrate the attack.

About a month after prosecutors charged Smollett, they dropped all counts against him noting that he forfeited his $10,000 bond and had done community service in a move that drew sharp criticism. State’s Attorney Kim Foxx previously handed the case to deputies, saying she had recused herself.

Former Cook County Judge Michael Toomin appointed Webb, a former U.S. attorney, as special prosecutor amid scrutiny around the decision, finding that Foxx did not go through the formal process for recusing herself from the case. Webb later refiled the charges.

In his appeal, Smollett argued that Cook County prosecutors dropping the case resolved it, similar to a deferred prosecution agreement, particularly because he forfeited his bail.

Attorneys for the state, though, among other arguments, contended that prosecutors who drop charges are not precluded from refiling charges in the same case.

In the majority opinion delivered by Judge David Navarro and concurred with by Judge Mary Ellen Coghlan, the judges wrote that Smollett “challenges virtually every aspect of the second prosecution that resulted in his convictions and sentence.”

“The record does not establish that Smollett entered into a nonprosecution agreement with the (Cook County State’s Attorney’s Office), in which the (office) agreed to forgo further prosecution of him in exchange for his performance of community service and the forfeiture of his bond,” the opinion reads.

A Cook County judge had sentenced Smollett to 150 days in jail, 30 months of probation and $130,160 in restitution, but his sentence is on hold while the appeal process plays out.