Jussie Smollett Trial: Prosecutor Says Smollett Fabricated Racist, Homophobic Attack; Defense Says He Really Was A Victim
CHICAGO (CBS) -- Nearly three years after he was accused of lying to Chicago police when he claimed he was the victim of a racist and homophobic attack, actor Jussie Smollett's trial began on Monday.
Smollett arrived at the Leighton Criminal Courthouse around 9:30 a.m., with his family, lawyers, and security guards at his side.
A jury of six men and six women was empaneled by the late afternoon. Opening statements began afterward.
Special prosecutor Dan Webb began by laying out his case for the jury – saying Smollett's story about a racist and homophobic attack was all a hoax. Webb said although the burden is on the special prosecutor's office, he really only has to prove two things – that Smollett went to police and claimed that a hate crime had occurred, and that he acknowledged that there never was a crime.
As Chicago Police did earlier, Webb also Smollett's alleged hoax stems from a threatening letter that was sent to the set where "Empire" is filmed that mentioned Smollett in a threatening manner. The claim is that Smollett was upset that executives on the show "Empire" did not take the letter seriously enough, and that really got the plan to stage the fake attack in motion.
In his opening statement, defense attorney Nenye Uche said Smollett really was attacked – and placed the blame on brothers Ola and Abel Osundairo, whom police accuse Smollett of paying to stage the attack.
Uche claimed Smollett thought one of the Osundairo brothers was a friend, but it was a one-way street and they pretended to like him. They really saw Smollett as a target and a mark, Uche said.
Uche said Smollett was a victim and there was a real attack. He said the Osundairo brothers did not like Smollett, and there was possibly a third person involved.
Uche said the Osundairo brothers are "not some foreign exchange students from Nigeria," but "sophisticated, highly intelligent criminals."
When Chicago Police raided brothers' home, "weapons of war" were taken along with drugs, multiple cellphones, and computers, Uche said.
Our cameras were allowed exclusive access shortly after the search.
Uche added that the jury will not hear forensic evidence or electronic evidence linking Jussie to a hoax.
The attorney said there is no motive in this case, and Smollett did not feel like there was a lack of attention or that there was a lack of security. Uche said Smollett is not a person who likes attention, and publicist was upset with him over that.
Uche further said Smollett did not hand over his medical records because he is a celebrity and entertainer.
The defense attorney said Smollett has never changed his story, but the Osundairo brothers have changed story several times and allowed to chit-chat to get their story straight while being interrogated.
Uche told the jury, "Just do your job," prompting an objection from Webb. Afterward, Cook County Judge James Linn dismissed the jury for the night.
Potential jurors were earlier asked if they watched the hit show "Empire" in which Smollett once starred, or if they have ever seen certain tabloid news programs. Some were also probed about any civil rights or pro-police organizations they may belong to.
Smollett is facing six felony counts of disorderly conduct, accused of orchestrating a phony hate crime against himself in January 2019.
Smollett, who is Black and openly gay, had told police he was attacked as he was walking home around 2 a.m. on Jan. 29, 2019. He claimed two masked men – one of them also wearing a red hat – shouted racist and homophobic slurs as they beat him, put a noose around his neck, and poured a chemical on him.
Police said, in reality, Smollett had paid those two men, the Osundairo brothers, $3,500 by check to stage the attack.
Police said the brothers were even given cash to buy ski masks, a rope to resemble a noose, and other items for the hoax.
And shortly after Smollett reported the attack, he still had the rope around his neck when officers arrived. Webb accuses the actor of bringing the knot closer to his neck before police entered.
"Apparently, he wanted to make it look more like a lynching," Webb said during his opening statement.
Also raised was a text from Smollett to one of the brothers with what prosecutors say was an instruction that got the whole plan in motion. The text read, "Might need your help on the low."
The 2019 incident sparked political and social outrage.
"Why would anyone let along an African American man use the symbolism of a noose to make false accusation?" then-police Supt. Eddie Johnson said on Feb. 21, 2019.
The case also caused a major controversy for Cook County State's Attorney Kim Foxx, after she dropped the initial charges against Smollett in March 2019, without requiring he admit any wrongdoing,
A special prosecutor later was assigned to look into the entire case, after a judge found "unprecedented irregularities" in how Foxx handled the case, specifically by handing it over to her second-in-command after announcing she had recused herself.
Last year, following an investigation by special prosecutor Webb, a special Cook County grand jury returned a six-count indictment accusing Smollett of lying to Chicago Police.
Smollett has pleaded not guilty to the new indictment.
Attorneys for the actor said Smollett's rights were violated when he was indicted the second time, because he performed community service after the original charges were filed, and gave up his $10,000 bond in a deal with Cook County prosecutors to drop charges.
But Judge Linn has denied Smollett's attorneys' attempts to dismiss the new indictment, ruling when Judge Michael Toomin appointed Webb as a special prosecutor to investigate the entire case in August 2019, he determined the original case against Smollett was void, after determining Foxx improperly recused herself and appointed a top deputy to prosecute the case.
In August, Judge Linn denied a motion from Smollett's attorneys, seeking to call on Foxx or her chief deputy to testify in the case about statements they made to the media about the original case against him.
In July, Linn ruled one of Jussie Smollett's attorneys, who had previous contact with two of the witnesses in the criminal case against the former "Empire" actor, will be allowed to represent Smollett at trial, but cannot cross-examine the two witnesses.
Linn's ruling centered around a question of whether attorney Nenye Uche has a conflict of interest in the case, and should be disqualified from representing Smollett.
Special prosecutors handling the case against Smollett and an attorney for brothers Abel and Osundairo -- two key witnesses against Smollett -- had argued Uche should be kicked off Smollett's defense team because he spoke to the brothers about the case before taking on Smollett as a client.
However, Linn noted the brothers never hired Uche to represent them.
Linn ruled that Smollett is the only person in the case whose freedom is at stake, and he has waived any potential conflict of interest regarding Uche's previous contact with the Osundairo brothers, so Uche should stay on the case if Smollett wants him as part of the defense team.
Smollett faces up to three years in prison for each count of disorderly conduct, but is unlikely to be given significant time behind bars if any at all, despite a previous DUI arrest during which he gave false information to police by giving his brother's name when he was asked to identify himself.
"He's not a first offender. He had a case a few years ago, where he was found guilty of giving false information to the police, and that's basically what he did in this case. The law in Illinois says you should get probation on a class 4 felony, which is what he's charged with, but because he does he have this background that may tip the scales, a little bit towards giving him a little jail time," CBS 2 Legal Analyst Irv Miller said.
No cameras are to be allowed in the courtroom during Smollett's trial.
Linn earlier told potential jurors they will be working until about 7 p.m. each night of the trial, which he expects to wrap up by the end of this week, or early next week at the latest.
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