CHICAGO (CBS) -- Former "Empire" actor Jussie Smollett was convicted on five counts Thursday evening on charges he orchestrated a fake hate crime against himself nearly three years ago, while jurors acquitted him of one other count.
A jury of six men and six women deliberated more than nine hours over two days before finding Smollett guilty of five of six counts of disorderly conduct, accusing the actor of staging a fake racist and homophobic attack against himself in January 2019, and then lying to police about it, in a bid for publicity. Jurors found him not guilty of the sixth count of disorderly conduct.
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, which has not yet been scheduled. Smollett is due to appear in court on Jan. 27, when the sentencing date will likely be sent.
CBS 2 Legal Analyst Irv Miller has said it's unlikely Smollett would be sentenced to significant time in prison, if any, despite previously pleading no contest to charges he lied to police by giving his brother's name during a DUI arrest in California.
"So he's not really a first-time offender. So when this case comes down to sentencing in a month or so from now, the judge is going to have a pre-sentence report by a probation officer, which lays out his entire background -- the good stuff, the bad stuff -- and decide whether or not he should get probation. And, frankly, under Illinois law, for a class 4 felony, there's a presumption that he should get probation," Miller said.
However, Miller said prosecutors might ask the judge to give Smollett up to six months in jail in addition to probation.
"That is a reasonable probability, because the judge may look at him and say, 'Mr. Smollett, you got on that stand and you lied. You lied to these jurors. You lied to the police. You lied to me. I think you did not take that first step towards rehabilitation, and earned a little jail time," Miller said.
Special prosecutor Dan Webb called the jury's verdict "a resounding message" that Smollett staged a fake hate crime against himself.
"During my closing argument, I told the jury that I though the evidence was overwhelming; that, in fact, Mr. Smollett had faked the hate crime, and then lied to the police about it, and then compounded his crimes by lying to the jury during the course of this trial, and insulting their intelligence," he said. "With the resounding verdict that we just received from this jury, after one day of deliberations, in which they found Mr. Smollett guilty of virtually all charges of doing exactly what we said he did, of reporting a fake crime to the Chicago Police Department as a real crime."
Verdict Analysis: Attorney Kimberley Egonmwan
Meanwhile, defense attorney Nenye Uche said he plans to appeal Smollett's conviction, and he expects the appeal will succeed.
"We are confident in our appellate system," Uche said. "We're confident in our Illinois Supreme Court."
Uche emphasized that a security guard who testified for the defense corroborated everything Smollett said. He said Smollett was tried and convicted in the news media well before the trial happened.
"We feel 100 percent confident that this case will be won on appeal," Uche said.
As to what specific grounds for appeal he might have, Uche said, "I will be here for 10 hours if I started listing the grounds of appeal."
Smollett himself did not say anything as he left court.
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.
Verdict Analysis: Attorney Gregory Walker
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."
When prosecutors asked Osundairo why he would agree to go through with the plan, Abel said: "I agreed to do it most importantly because I felt indebted to Jussie. He also got me a stand in role on 'Empire,' and I believed he could further my acting career."
Attorney Gloria Rodriguez, representing the Osundairo brothers, said her clients "could not be more pleased with the result." She called for healing following the trial.
During closing arguments this week, Webb argued that the prosecution presented a clear-cut case that Smollett orchestrated a hoax.
"We have proven this by overwhelming evidence," he said.
Webb said it was "just plain wrong" for a Black gay man like Smollett to stage a phony hate crime, using symbols of racism like a noose and use of the N-word.
"To outright denigrate something as serious, as heinous, as a real hate crime -- to denigrate it and then make sure it involved words and symbols that have such horrible historical significance in the our country," Webb said.
But Smollett's defense attorney asserted the prosecution's case is based on the testimony of liars, calling the Osundairo brothers "the worst type of criminals."
"The entire prosecution case including the foundation of their case is built like a house of cards, and we all know what happens to a house of cards when you apply a little pressure: it crumbles," defense attorney Nenye Uche said.
Uche said the Osundairo brothers accusing Smollett of staging a hoax was simply a "blame the victim scam."
"It's better than the Nigerian prince scam," Uche said. "Don't fall for it."
Webb said he believes there were two things that likely stuck with the jury to convince them to reach a guilty verdict: Smollett's claim that he went out around 2 a.m. on a night with temperatures well below freezing to buy eggs, and that the Osundairo brothers knew where to find him to attack him; and that Smollett admitted adjusting the rope that was put around his neck before police arrived.
"I think my basic argument that it is ridiculous to think that Smollett left his apartment on the night of January 29th at 2 o'clock in the morning to go buy eggs, and that that's his explanation for why he ended up right at that intersection right at 2 o'clock in the morning, that the brothers said is where he told them that the attack should take place. So the fact that it actually happened that way, I think, was pretty profound," Webb said. "I also think that sometimes it's simple things. He actually rigged that rope after that rope got put on him. I showed the picture to the jury. Pictures don't lie. Those pictures showed that he actually, after he went through this fake attack, wanted to make it look better, and he jimmied with the rope to make the noose look closer to his throat, and rustled around. Because the rope, you saw it in the courtroom, was nice and neat around his neck, because Ola Osundairo didn't have time to do much with it, because a car came, and so he ran away, he left the rope next to his face, Smollett got up, put it around his neck, and then when it didn't look bad enough, he changed it, and I think that impacted the jury."
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