Jussie Smollett is asking the Illinois Supreme Court to review his case, more than two years after a Cook County jury convicted him of orchestrating an elaborate hoax hate crime attack against himself.
The former “Empire” star on Monday filed a petition to the state’s high court to review an appellate court’s ruling after it upheld his 2021 convictions on five counts of disorderly conduct.
Smollett — who has maintained his innocence in the five years since the alleged attack — has claimed he faced double jeopardy when a special prosecutor filed renewed charges against him after Cook County prosecutors dropped their initial criminal case.
A three-judge panel upheld those convictions last December on a 2-1 vote, but in her dissenting opinion, Justice Freddrenna Lyle took issue with the dismissal of the initial charges by Cook County State’s Attorney Kim Foxx’s office.
“Justice Lyle’s explanation is consistent with nearly a century of Illinois and American appellate courts enforcing agreements that have been fully performed by a defendant to the State’s benefit,” Smollett’s attorney Nenye Uche wrote in the motion. “But contrary to well-established precedent, the Majority Opinion refused to recognize and enforce a bilateral nonprosecution agreement within the context of a nolle prosequi.”
Smollett claimed to be the victim of a January 2019 attack by two men near his Streeterville apartment. He claimed they yelled racist and homophobic slurs before they hit him in his face, poured a chemical substance on him and wrapped a rope around his neck.
Following an investigation, Chicago police determined Smollett had hired the men — brothers Olabinjo and Abimbola Osundairo — to stage the attack. He was then charged by Cook County prosecutors in February 2019.
But just weeks later, Foxx’s office dismissed those charges in a surprise move that sparked swift backlash against her office. The actor’s legal team argued this dismissal was part of a deal between Smollett and prosecutors in which the charges were dropped after he agreed to forfeit the $10,000 he paid in bond and complete 16 hours of community service.
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 to investigate 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 trial, Webb and his team 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 testified in his own defense at trial and told jurors there “was no hoax.” But at sentencing, Cook County Judge James Linn called his testimony “pure perjury.”
He was convicted on five counts and sentenced to serve the first 150 days of a 30-month probation sentence in jail.
But Smollett’s defense team claimed that Webb’s appointment and the second set of charges were unwarranted because Smollett had been “punished already” through his agreement with Foxx’s office.
“The fact that the (special prosecutor) later gave in to public outcry over the disposition of the initial prosecution,” Uche wrote, “has no bearing on the enforceability of the nonprosecution agreement.”