An Illinois appellate court has upheld former “Empire” star Jussie Smollett’s disorderly conduct convictions, nearly two years after a jury found him guilty of lying about orchestrating an elaborate hate crime against himself.
In a 2-1 decision published Friday, the First District court rejected the actor’s claims that he had faced double jeopardy when a special prosecutor filed renewed charges against him after Cook County prosecutors dropped their initial criminal case.
Smollett was subsequently tried in 2021 and convicted of five counts of disorderly conduct. He was ordered to serve the first 150 days of a 30-month probation sentence in jail — but that sentence had been delayed pending the outcome of his appeal.
“Given the absence of a nonprosecution agreement with the (Cook County State’s Attorney’s Office), reprosecuting Smollett was not fundamentally unfair,” the court wrote in its ruling. “Because the charges against Smollett were nol-prossed before jeopardy had attached in the first criminal proceeding, the subsequent prosecution did not violate his right against double jeopardy.”
Smollett had long contended he was a “real victim” of a hate crime perpetrated by two men he said attacked him outside his Streeterville apartment in January 2019. He claimed the men yelled racist and homophobic slurs before they hit him in his face and wrapped a rope around his neck.
But following an investigation, Chicago police determined Smollett had hired the men — brothers Olabinjo and Abimbola Osundairo — to stage the attack.
Smollett was charged by Cook County prosecutors in February 2019, but Kim Foxx’s office dismissed those charges weeks later in a move that sparked swift and immediate backlash against her office.
The actor’s legal team argued this was part of a deal between Smollett and prosecutors in which the charges were dismissed after he agreed to forfeit the $10,000 he paid in bond and complete 16 hours of community service. In his appeal, Smollett’s attorneys said Foxx’s office used proper discretion to drop the original charges four years ago.
But later that year — amid continued calls for an investigation into Foxx’s handling of the case — a judge appointed veteran litigator Dan Webb as a special prosecutor tasked with investigating both the Smollett incident and what happened within Foxx’s office that led to the first charges being dismissed.
In February 2020, a grand jury reindicted Smollett on new disorderly conduct charges.
At his 2021 trial, special prosecutor Dan Webb argued Smollett hatched a “secret plan” with the Osundairos because he was upset with how the studio behind “Empire” had responded to a piece of hate mail he’d received days earlier.
Smollett, who testified in his own defense, maintained his innocence and told jurors there “was no hoax.” At sentencing, Cook County Judge James Linn called his testimony “pure perjury”
“You’re just a charlatan pretending to be the victim of a hate crime,” Linn told Smollett at the time. “And that’s shameful.”
As he was led from the court, Smollett repeatedly yelled that he was “not suicidal” and shouted “I am innocent.”
In a dissenting opinion, Justice Freddrenna Lyle took issue with the dismissal of the initial charges by Foxx’s office. She said Smollett “gave up something of value” in exchange for the case being dropped, and that prosecutors “engaged in a level of gamesmanship and bad faith that should be condemned.”
“Here, Smollett did not enter into a plea agreement with the State, but a bilateral agreement took place, which bound the State, nonetheless,” they wrote. “The majority contends that there is no evidence in the State’s agreement that the parties intended for the agreement to be tantamount to a dismissal with prejudice. I disagree.”
Smollett served just six days of his jail sentence before he was released pending appeal.
The Associated Press contributed to this report.