CHICAGO (CBS) -- A defense attorney called for a mistrial in the Jussie Smollett trial Thursday, after a wild few moments in which she accused the judge of lunging at her.
As CBS 2's Charlie De Mar reported, this happened during a sidebar conversation with attorneys from both sides and Cook County Judge James Linn. Defense attorney Tamara Walker asked for a mistrial because of a comment that Judge Linn made, and then she began crying and accused Judge Linn of physically lunging at her in the courtroom.
Judge Linn denied the accusations, and also denied the motion for a mistrial. But it all amounted to some chaotic moments in the courtroom.
"I'm stunned that you would consider a mistrial," the judge said.
CBS 2 Legal Analyst Irv Miller said he has never heard an attorney make such allegations against a judge.
"Never seen it happen," Miller said. "This is a first even for me – I've been doing this a long time. But I've never seen an attorney accuse a judge of doing anything such as this attorney announced in court that occurred in Judge Linn."
Miller said the since the jury was not present when the purported lunge took place, it will not have an effect on the trial.
Another attorney for Smollett also accused Judge Linn of snarling and making faces throughout the testimony.
Earlier Thursday, Abel Osundairo returned to the witness stand, and his brother Ola also testified in the trial, with both claiming that Smollett asked and paid them to stage a racist and homophobic attack against him.
As CBS 2's Charlie De Mar reported, Abel got grilled about just how close he was with Smollett. The defense suggested they are more than friends.
In a series of bombshell questions, attorneys for Smollett suggested that Abel Osundairo had a secret romantic relationship with Smollett. Abel denied those claims, and he kept his composure as attorneys peppered with questions about his character.
Smollett gave a small fist pump as he walked into court Thursday. He is charged with lying to police and staging his own attack.
Friends are still standing by his side.
"He has maintained his humanity, his dignity, and I think that it's an important thing for all of us to recognize that this is an attack on the character," said Lauren Michelle.
Star witness Abel Osundairo started the day on the receiving end of an intense line of questioning by Smollett defense attorney Shay Allen:
Allen: "When did you and Jussie start dating?"
Abel Osundairo: "What? We were never dating."
Allen: "Were you using the sexual tension between you to progress your acting career?"
Abel Osundairo: "I didn't know there was sexual tension."
Smollett, who is Black and openly gay, had told police he was attacked as he was walking home on Lower North Water Street 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 and prosecutors have said Smollett orchestrated it himself, paying the Osundairo brothers $3,500 to help stage the attack.
Testimony revealed Smollett wanted to use the security video of the incident for publicity, but the actual attack was not caught on camera.
We spoke to Abel before he began testifying on Wednesday. CBS 2's De Mar asked him if he was nervous.
"You don't have to be nervous if you have the truth on your side," he replied.
After the defense's cross-examination, special prosecutor Dan Webb returned to ask Abel further questions for redirect.
The defense had suggested that the Osundairo brothers were homophobic and that was the motive for the attack on Smollett. The special prosecutor ended his redirect by asking Abel about the time he and his brother participated in a Chicago LGBT Pride Parade float.
Afterward, older brother Ola Osundairo took the stand. Ola told the jury that Smollett wanted to be splashed with gasoline, but Ola felt that such a substance was too extreme and used bleach instead.
"I didn't think it was safe," Ola said on the stand.
Returning to the defense's contention that the Osundairo brothers are homophobic, the special prosecutor sought to establish otherwise. The jury was shown a picture of Ola on a Trojan condom Pride Parade float from years back, and explained that he was, "throwing out condoms and flexing."
On cross-examination, Smollett defense attorney Walker asked Ola about tweets in which he used homophobic language. Cook County Judge James Linn stopped the defense and said they were getting into "collateral" territory. This prompted the sidebar that led to Walker's accusations for the judge and the defense's call for the mistrial.
"I think it was a legit request by the Smollett attorneys, because they're saying, 'Hey, a good part of our defense has to do with whether or not these brothers did not like gay people,' and certainly, if they think that's the biggest part of their defense and the judge isn't letting them get into that, that's a big problem," Miller said. "However, I also think it's legitimate for the judge to deny the mistrial based on that, because that's not the issue in this case, whether or not they like or dislike gay people. The issue is was this fake, or was this real? And that's the bottom line."
Smollett's defense also argued the brothers were interested in working security for Smollett, and attacked the actor in an effort to scare him into hiring them. Both brothers denied that claim.
The prosecution rested late Thursday, and the case went to the defense. The Osundairo brothers exchanged hugs and high fives as they left the George N. Leighton Criminal Court Building.
The first witness for the defense was Brendan Moore, who was on the phone with Smollett during the reported attack. Moore said he heard scuffing and racial and homophobic slurs being uttered, and said Smollett told him he'd just gotten jumped.
Moore was Smollett's music manager.
"I proceeded to hear the phone drop and stuff — it started to sound kind of intense," Moore said.
The defense next called Dr. Robert Turelli, an emergency room doctor at Northwestern Memorial Hospital where Smollett was taken the night of the attack. Turelli was given permission to discuss Smollett's medical history as it relates to this case.
Turelli was on duty and treated Smollett the night he came in after reported attack. He testified he thought Smollett's attorneys were real, and said X-rays were ordered and came back negative.
The defense also called entertainment publicist Pamela Sharp, who became Smollett's publicist around the time of the premiere of the show "Empire," in which he starred.
Sharp said Smollett did not like the camera on him and did not like publicity. She also said he made over $2 million a year.
The defense's line of questioning with Sharp was intended to demonstrate that Smollett was happy with his salary, contrary to some claims that dissatisfaction with his salary might have motivated him to stage a fake attack.
Court wrapped for the night around 8:15 p.m. The jury has the night off on Friday.
The jury is expected to have the case by Monday or Tuesday at the latest.
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