Year after sentencing, actor Jussie Smollett appeals, claiming his double-jeopardy rights were violated, trial judge biased

Nearly a year after being sentenced to five months in jail, only to be released on bond days later, former actor Jussie Smollett has filed his long-awaited appeal claiming his indictment by a special prosecutor was invalid due to double-jeopardy concerns and that the trial judge was biased against him.

The 102-page brief filed Wednesday with the Illinois Appellate Court tread mostly familiar ground in the well-worn case against Smollett, the onetime “Empire” star who was convicted by a jury in December 2021 of paying two acquaintances to fake a racist and homophobic attack on him to get exposure and boost his career.

Cook County Judge James Linn sentenced Smollett in March 2022 to 150 days in jail in a hearing during which Smollett once again proclaimed his innocence, dramatically telling the judge, “I am not suicidal … If anything happens to me in there, I did not do it to myself!” before being led away with his fist in the air.

A week later, a three-judge appellate panel granted Smollett’s request for bond pending appeal and he was released from the Cook County Jail. Smollett’s attorneys had since asked for and received several extensions to file their appeal due to delays in retrieving transcripts and other materials from the clerk’s office.

Echoing previous arguments, Smollett’s attorney, Nenye Uche, alleged in the filing that Smollett’s rights against being reprosecuted for the same crime were violated when Special Prosecutor Dan Webb filed disorderly conduct charges against him, even though State’s Attorney Kim Foxx’s office had agreed to dismiss nearly identical claims in 2020.

Smollett held up his end of the controversial deal, forfeiting his $10,000 bond to the city of Chicago as reimbursement for the investigation into the alleged attack and performing community service at Rev. Jesse Jackson’s Rainbow PUSH Foundation, according to the brief.

“Mr. Smollett’s negotiated bail bond forfeiture and performance of community service during his first prosecution constituted punishment and thus, his second prosecution and punishment for the same offenses violated the Double Jeopardy Clause protection against multiple punishments for the same offense,” the brief stated.

Uche also wrote that “the only reason there was even a second indictment” was because the resolution by Foxx’s office of the first case “was not well received by the public,” prompting a pro se petition for the appointment of a special prosecutor by a ‘concerned citizen.’

Smollett’s attorney also took issue with several rulings by Linn, both before and during the trial, including denying the defense access to notes of interviews Webb’s office conducted with key witnesses, barring defense attorneys from directly questioning prospective jurors during jury selection, and failing to give the jury a specific instruction warning about the testimony of star witness Abimbola Osundairo.

Uche accused Linn of being “dismissive” of the defense and openly hostile at times during the trial, particularly when the defense tried to flesh out its theory that police had failed to consider that Smollett was the victim of a bona fide attack “driven by the homophobic motives of his attackers.”

“The trial court, in front of the jury, again rushed defense counsel’s cross-examination and accused the defense counsel, without justification, of ‘editorializing,’” Uche wrote.

Linn’s alleged bias against Smollett was also evident at sentencing, Uche said, where the judge’s closing remarks “demonstrated that Mr. Smollett’s sentencing took on a personal retributive tone.”

Uche singled out Linn’s remarks that Smollett was “a hypocrite on social justice issues who wanted to throw a national pity party,” and that the actor was selfish, arrogant, and narcissistic for using up policing resources for his own benefit.

And, the brief said, Linn’s remarks that Smollett had ripped “scabs off some healing wounds” of America’s past of social injustice were highly inappropriate.

Smollett’s bizarre saga began on a cold January night in 2019, when the former “Empire” star, who is Black and openly gay, reported to Chicago police that he was attacked by two men while out getting food from a Subway sandwich shop around 2 a.m. Smollett reported that the men yelled racial and homophobic slurs, declared, “This is MAGA country,” hit him and wrapped a noose around his neck.

Smollett’s accusations made worldwide headlines and prompted many fellow actors and public officials, including future Vice President Kamala Harris, to decry the attack.

Skepticism quickly grew around Smollett’s claims, though, and the story fell apart the following month after police interviewed Abimbola and Olabinjo Osundairo, the two brothers prosecutors said were hired to stage the attack.

Cook County prosecutors charged Smollett with disorderly conduct on Feb. 20, 2019 for filing a false police report, though State’s Attorney Kim Foxx had previously recused herself because of “familiarity with potential witnesses in the case.”

In a surprise move about a month later though, the state’s attorney’s office dropped all charges with little explanation, drawing criticism and scrutiny around the decision.

Former Cook County Judge Michael Toomin ordered a special prosecutor look into the matter. Toomin found that Foxx improperly recused herself from the case when she handed it to a top deputy. He appointed former U.S. Attorney Dan Webb to investigate, and Webb refiled charges.

A jury convicted Smollett in December of 2021 on five out of six felony counts of disorderly conduct for staging a fake hate crime that prosecutors said was carried out by two brothers Smollett hired to do the job.

jmeisner@chicagotribune.com