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Jussie Smollett asks Illinois Supreme Court to toss conviction for staging hate crime attack

Jussie Smollett asks Illinois Supreme Court to hear case
Jussie Smollett asks Illinois Supreme Court to hear case 00:47

CHICAGO (CBS) -- Jussie Smollett is asking the Illinois Supreme Court to throw out his 2021 conviction for lying about being the victim of a hate crime in 2019, arguing his trial violated his constitutional protections against double jeopardy.

"What should have been a straightforward case has been complicated by the intersection of politics and public outrage," Smollett's attorneys wrote in their Monday filing with the state's highest court.

Smollett, who is Black and gay, and best known for his role on the TV show "Empire," has claimed he was the victim of a racist and homophobic hate crime in Streeterville in 2019. But after investigating his claims, police began focusing on Smollett himself, and he was charged with 16 felonies, accusing him of staging a fake hate crime against himself and lying about it to police.

Those charges were dropped weeks later, but a judge later appointed a special prosecutor to determine if new charges should be filed, after ruling the deal to drop the initial charges was invalid.

That special prosecutor later brought new charges against Smollett, who was convicted on five counts of disorderly conduct in 2021, and was sentenced to 150 days in jail. He spent only six days in custody before he was released while he appealed his case.

In December, a three-judge panel of the Illinois Appellate Court upheld Smollett's conviction, ruling that there was no evidence prosecutors had agreed not to prosecute Smollett further when the initial charges against him were dropped in exchange for him forfeiting his $10,000 bond and performing 16 hours of community service.

But Appellate Justice Freddrenna Lyle dissented in that ruling, arguing it was "fundamentally unfair" to appoint a special prosecutor to charge Smollett a second time after he'd entered an agreement he believed would end the case.

In their appeal to the Illinois Supreme Court, Smollett's attorneys argued that the special prosecutor "gave in to public outcry" over the initial charges against him being dropped.

Smollett's attorneys argued the record clearly shows he entered into a "nonprosecution agreement" with prosecutors, and is protected against double jeopardy.

Smollett has maintained he is innocent, and testified at trial that the attack against him was real, but a jury sided with prosecutors who had argued the attack was a publicity stunt.

The Illinois Supreme Court has yet to schedule any hearings on Smollett's appeal. It likely would be several months before any ruling is handed down if the court agrees to hear the case. It could also decline to take up Smollett's appeal, thereby sealing his conviction.

"The Illinois Supreme Court takes a very small percentage of the cases that are presented to them. This, however, is an interesting case, because it does involve constitutional issues, and they decide since it's unique, it's in the media, it's out there, and maybe they should get involved in making the final decision on the case," CBS 2 Legal Analyst Irv Miller said. "I wouldn't be surprised if they take it, but on the other hand they don't take a lot of cases."

If the court does not take up Smollett's appeal, or upholds his conviction, his case would then be sent back to the trial court for him to complete his 150-day sentence.

Smollett also potentially could appeal his case to the U.S. Supreme Court, since he is arguing his conviction violates his Fifth Amendment protections against double jeopardy. Miller said he thinks that's likely, given how aggressive his defense team has been in its handling of the case.

"He's going to keep going until he's out of legal remedies," Miller said.

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