Appeals court hears Jussie Smollett's bid to toss hate crime hoax convictions
CHICAGO (CBS)-- The legal saga continues for former Empire actor Jussie Smollett, who is trying to avoid jail time.
On Tuesday, an Illinois appeals court panel heard arguments from his attorneys, who say his convictions should be tossed out.
Smollett claimed he was the victim of a hate crime in Streeterville in 2019. He was charged with 16 felonies alleging he orchestrated a fake hate crime against himself. Those charges were dropped.
A new indictment and trial followed, and Smollett was convicted on five counts of disorderly conduct in 2021. Smollett filed an appeal in March 2022, challenging his conviction.
His attorneys have argued he is being punished for the same crime twice because he forfeited his $10,000 bond payment and agreed to perform 16 hours of community service when Cook County prosecutors dropped the original charges. A judge later ruled that the deal was invalid and appointed a special prosecutor who filed the new charges leading to Smollett's conviction.
Smollett's team has argued that the trial violated his Fifth Amendment protections against double jeopardy.
CBS 2 Legal Analyst Irv Miller said he thinks Smollett's attorneys have a case.
"There's a legitimate argument here," Miller said. "A legitimate legal argument here, based upon the fact that acts were taken against him that put him in jeopardy. He paid a fine. He continued with his community service, and he didn't violate the terms of the agreement, which is typically required when you try to get rid of the agreement and say 'Hey we're going to start from scratch because you didn't behave yourself.' He did behave himself. He did his community service. He paid the fine, and the system decided, 'Well that wasn't good enough. We want to try him again.'"
So what happens if the court decides Smollett's attorneys have a case and that his Fifth Amendment rights were violated?
"If the appellate court says his Fifth Amendment rights were violated, he's going to walk out period," Miller said. "He's going to walk out the front door with no conviction and they can't try him again."
Smollett has never made a statement accepting guilt in the case, something the state prosecutor pointed out in court on Tuesday.
The ruling is expected to take several weeks.
If his conviction is upheld, he must complete the 150-day jail sentence handed down in 2022. He spent only six days behind bars before he was released while he appealed his conviction.
