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Jussie Smollett Can Keep Attorney Who Spoke To Witnesses In Criminal Case, But Other Lawyers Must Cross-Examine Osundairo Brothers

CHICAGO (CBS) -- A Cook County judge has 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.

Judge James 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.

While the Osundairo brothers were being questioned by Chicago Police, their family called both Uche and attorney Gloria Rodriguez about representing them, but Rodriguez was the first to respond to their requests for help, and was already representing them when Uche later showed up at the police station, according to Linn's ruling.

When Uche learned Rodriguez was already representing the brothers, he and a colleague left the police station without establishing any attorney-client relationship with the Osundairos. Later, after police had searched the brothers' home and the brothers had testified against Smollett before a grand jury, Uche continued to receive requests for advice from the brothers' friends and family, and spoke to the brothers and their mother on the phone regarding possible immunity in the case, the search warrant, and other matters. However, Linn noted the brothers never hired Uche to represent them.

Friday morning, 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.

"The interest of Mr. Smollett to have the lawyer of his choice when his liberty is at stake outweighs any other valid and good faith concerns" of the special prosecutors and the Osundairo brothers.

However, Linn said he also has "a firm obligation to protect the integrity of the trial and the legitimate concerns of the Osundairo family witnesses," so Uche will not be allowed to cross-examine them should the case go to trial.

"The defense team includes multiple, highly skilled, experienced and clearly competent trial lawyers," Linn wrote. "Some other member(s) of the highly qualified defense attorneys shall cross examine the Osundairo family witnesses should this matter be adjudicated by way of trial."

The Osundairo brothers' attorney, Gloria Rodriguez, said in a statement the family is pleased with the judge's ruling, and the brothers "look forward to testifying at trial."

The Osundairo brothers claim Smollett paid them $3,500 to stage a fake attack on the actor.

Smollett was accused in January 2019 of staging a racist and homophobic attack against himself in Streeterville. He was charged with six counts of disorderly conduct.

Two months later, those charges were dropped by the Cook County State's Attorney's office.

A special prosecutor later was assigned to look into the entire case, after a judge found "unprecedented irregularities" in how Cook County State's Attorney Kim Foxx handled the case, specifically by handing it over to her second-in-command after announcing she had recused herself.

In February 2020, 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.

The next hearing in the case is scheduled for Monday, when Linn said prosecutors and defense attorneys will resume discussing pretrial motions that have been delayed while resolving the question of whether Uche should stay on Smollett's defense team.

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