Jussie Smollett faces felony charge for alleged false report of racist, homophobic attack
Felony charge of disorderly conduct/filing a false police report has been approved by the Cook County, Illinois, state's attorney's office
Chicago Police Department is working with Jussie Smollett's attorneys on a plan to turn himself in
Smollett is expected in bond court Thursday afternoon, CBS Chicago reports
Smollett's legal team released statement, vowing "an aggressive defense"
Smollett was classified "a suspect" by police earlier Wednesday
Gloria Schmidt, attorney for two brothers previously deemed suspects in the attack, addressed reporters and urged Smollett to say "what actually happened"
Exclusive video from CBS Chicago shows the brothers purchasing a red hat and ski masks from a store one day before the alleged assault
Jussie Smollett has been charged with falsely reporting that he was attacked in January. The Cook County, Illinois, state's attorney has filed a felony disorderly conduct charge against the actor, not long after the Chicago Police Department officially named Smollett "a suspect in a criminal investigation," according to a spokesperson.
Police said earlier that filing a false police report is a Class 4 felony. Smollett could face prison time of one to three years if convicted and be forced to pay for the cost of the police investigation.
Detectives were to contact his legal team to negotiate a reasonable surrender for his arrest. The Associated Press said police do not have a time frame for how long Smollett would be given. "We are trying to be diplomatic and reasonable, and we're hoping he does the same," police spokesman Anthony Guglielmi told AP.
CBS Chicago reports Smollett is expected in bond court Thursday afternoon.
In a statement to CBS News late Wednesday, Smollett's legal team said they will "mount an aggressive defense."
"Like any other citizen, Mr. Smollett enjoys the presumption of innocence, particularly when there has been an investigation like this one where information, both true and false, has been repeatedly leaked," said attorneys Todd Pugh and Victor Henderson. "Given these circumstances, we intend to conduct a thorough investigation and to mount an aggressive defense."
Wednesday's development comes after Smollett's attorneys met with prosecutors and detectives and after police said two brothers, who were earlier deemed suspects, had testified before a grand jury with the power to indict Smollett. In a press conference Wednesday night, the brother's attorney said they had testified for more than two hours.
"I think that Jussie's conscience is probably not letting him sleep right now," attorney Gloria Schmidt told reporters. "So I think he should unload that conscious and tell the American people what actually happened."
CBS News has learned detectives have been granted about a dozen search warrants to comb through Smollett's bank and cellphone records. CBS News correspondent Dean Reynolds said Smollett has retained the help of high profile lawyer Mark Geragos, whose clients have included Colin Kaepernick, Chris Brown and Michael Jackson.
The 36-year-old actor, who is black and openly gay, plays Jamal Lyon on Fox's hit TV show, "Empire," a drama that chronicles a family-run record label. He told police he was attacked by two masked men when he was returning home from a Subway sandwich store Jan. 29 around 2 a.m.
Smollett claimed the two men had beat him, said homophobic and racial slurs and put a looped rope around his neck before fleeing. He said he heard, "this is MAGA country," an apparent reference to President Trump's campaign slogan.
A source close to the investigation told CBS News on Feb. 16 two Nigerian brothers, Ola and Abel Osundairo, revealed to detectives Smollett paid them to participate in the attack. They said the rope that was found around Smollett's neck was purchased at a nearby hardware store. A raid of their home turned up ropes, masks and bleach.
Chicago police said that information had "shifted the trajectory of the investigation," and prompted another interview with Smollett. The actor's attorneys said he was "angered and devastated" by reports that he knew the alleged attackers, and that one of the men was Smollett's personal trainer. Ola Osundairo had played a prisoner in a season of "Empire."
On Feb. 19, in a statement to CBS Chicago, the brothers said: "We are not racist. We are not homophobic and we are not anti-Trump. We were born and raised in Chicago and are American citizens."
Earlier Wednesday, Fox Entertainment and 20th Century Fox Television released a statement to say Smollett "continues to be a consummate professional on set" and his character is not being written off the show.
Exclusive surveillance video obtained by CBS Chicago
CBS Chicago has obtained exclusive video of the Osundairo brothers buying a red hat and ski masks from a store the day before the Jan. 29 assault.
The station said footage shows Ola and Abel placing the masks and a hat on the counter. Smollett has claimed two men wearing a similar hat and masks in the attack. CBS Chicago has made multiple phone calls and visited several stores to obtain the video.
More on the investigation
The FBI and U.S. Postal Inspectors are studying a letter mailed to the studio where "Empire" is filmed and where Smollett works. The brothers allege Smollett crafted the letter and when it didn't garner much attention, planned the attack a week later.
On Tuesday, Chicago's top prosecutor, Cook County State's Attorney Kim Foxx, had recused herself from the Smollett investigation.
A one-sentence statement, via her spokeswoman, described the decision.
"Out of an abundance of caution, the decision to recuse herself was made to address potential questions of impartiality based upon familiarity with potential witnesses in the case," spokeswoman Tandra Simonton said.
Smollett appeared Feb. 14 on ABC's "Good Morning America" for his only television interview about the incident. He teared up in the interview with Robin Roberts and pushed back on those who questioned his story. He had said "pride" made him reluctant to initially report the incident, and that he was hesitant to give his phone to police because of private information on it.
Jason Silverstein and Dean Reynolds contributed to this report.
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