CHICAGO (CBS) -- Attorneys for Jussie Smollett, who is now awaiting sentencing for perpetrating a hate crime hoax, filed a motion Monday for a change in the verdict or a new trial.
On Dec. 10, a Cook County jury found Smollett guilty of five of six counts of disorderly conduct, while acquitting him of the sixth count. Prosecutors had charged Smollett with staging a fake racist and homophobic attack against himself in January 2019, and then lying to police about it, in a bid for publicity.
The charges for which Smollett was convicted dealt with his falsely telling several different police officers he was the victim of a hate crime and a battery.
The disorderly conduct charges are class 4 felonies, carrying a sentence of up to three years in prison. Smollett will remain free on bond as he awaits sentencing,
A 103-page filing Monday asked the court to toss a jury's guilty verdict and find Smollett not guilty instead, or in lieu of that, to grant him a new trial.
The filing took issue with what it called pre-trial errors that were not addressed by the court in Smollett's trial. Attorneys for Smollett in particular claimed that the trial judge violated Smollett's Sixth Amendment rights by "prevent(ing) the defense from "actively participating in jury selection," and also made the wrong ruling when defense attorneys argued that some prospective jurors had been excluded at prosecutors' request based on their race.
The filing also took issue with numerous aspects of the judge's instruction to the jury, and also accused the court of denying Smollett's due process right to a "public trial" – given that members of the public and sometimes the news media couldn't get into the courtroom throughout much of the trial until an overflow room was set up.
Defense attorneys also clamed the judge erred in failing to grant their motion for a directed finding of not guilty after the prosecution rested – among numerous other claims.
Smollett, who is Black and 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 two brothers – Abel and Ola Osundairo – $3,500 to help stage the attack.
Smollett said his attackers doused him in bleach and draped a rope resembling a noose around his neck. Abel and Ola Osundairo were initially detained – suspected of carrying out the attack on Smollett.
But in a turn of events, Smollett went from victim to suspect – charged with six counts of felony disorderly conduct for staging the attack and lying to police.
The brothers told investigators that Smollett gave them the money to buy the ski masks, rope, and red hats to appear like supporters of President Donald Trump.
Police said Smollett orchestrated the plan because of an anonymous hate-filled letter sent to the studio where "Empire" was filmed – and said Smollett did not think the threat was taken seriously.
Jurors heard from 14 witnesses over six days of testimony during Smollett's trial, with Smollett taking the stand in his own defense, repeatedly asserting that there was no hoax, and that the attack was real.
"To answer all your questions about the hoax, I am going to deny. There was no hoax," Smollett told Webb during cross-examination.
Smollett told jurors he paid the Osundairo brothers $3,500 to help him with training and nutrition advice, not to stage a fake hate crime against himself.
He also testified the brothers told him after the attack that they were willing to publicly say they were not part of any hoax if he paid them $2 million.
Earlier at trial, Abel Osundairo denied asking Smollett for $1 million each for him and his brother not to testify against Smollett.
The Osundairo brothers were the prosecution's key witnesses during the trial, with both claiming that Smollett asked and paid them to stage the attack. They said Smollett wanted to use security video of the incident for publicity, but the actual attack was not caught on camera.
When asked about the alleged fake attack, Abel said, "He explained that he wanted me to fake beat him up."
Cook County Judge James Linn has scheduled Smollett's sentencing hearing for March 10, and told prosecutors and defense attorneys to provide him with a list of potential witnesses by March 3.
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