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Brothers say they won't willingly testify against Jussie Smollett

Jussie Smollett denies fabricating hate crime
Jussie Smollett denies fabricating hate crime... 01:26

Chicago Police said brothers Abel and Ola Osundairo were paid $3,500 by actor Jussie Smollett to stage what Smollett claimed was a racist and homophobic attack on him in January 2019. Before concluding Smollett had orchestrated the attack, police raided the brothers' home as they were returning from a trip to Nigeria and identified them as persons of interest.

But they were released without being charged after they told police they were paid to stage the attack. Smollett was charged with disorderly conduct, had charges dropped by the Cook County State's Attorney's office and was subsequently hit with a fresh round of charges this past February.

All the while, the brothers' attorney said they were willing to testify against Smollett at trial.

But, reports CBS Chicago's Charlie De Mar, that's all changed – because the brothers question the handling of the storage of the items that were taken in the February 2019 raid.

"It's been over a year and they need to give us our stuff back," said Abel Osundairo, speaking exclusively to De Mar.

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Brothers Ola and Abel Osundairo CBS News

Abel Osundario and his brother, Ola, will no longer testify willingly against Jussie Smollett, according to their attorney, Gloria Schmidt Rodriguez – in part because the brothers say they're still bring treated like suspects despite being cleared by police.

"I would understand if we were defendants in the case, which we are not," Abel Osundiaro said.

It was Valentine's Day 2019 when Chicago Police kicked in the Osundairos' front door to serve a search warrant when the brothers were still under investigation — and took numerous items.

They included a safe containing a 9mm gun and ammunition. Abel Osundairo is a legal gun owner.

"Legally, it belongs to me, and I want to know its whereabouts," he said.

The Osundairos' stuff is sitting in a Chicago Police evidence locker — and the brothers want it back.

Attorney Schmidt Rodriguez has filed a motion with a judge for their belongings to be returned.

"Most of the stuff isn't even mine," Abel Osundairo said. "They belong to my oldest brother, my mother, my sister. They even took my dog's toy."

On Wednesday, Abel Osundairo filed a police report.

The brothers and their attorney say they are in an administrative dispute with the CPD over the items seized in that 2019 raid — specifically the whereabouts of the 9mm gun and ammo inside the safe.

"Of course I'm skeptical, because you are saying one thing one day and another thing another day," Abel Osundairo said. "It's just another thing we have to go through."

Chicago Police say the gun in question is accounted for and is being preserved as evidence. The CPD provided documentation to De Mar to corroborate the whereabouts of the gun.

Police added they will cooperate with a judge's order to turn over or produce evidence if appropriate.

As for Smollett, the new indictment filed against him in February charged the actor with six counts of disorderly conduct, accusing him of filing false police reports that he was attacked on the way home from a Subway in the middle of the night in January 2019.

Cook County prosecutors dropped the original case against Smollett, dismissing 16 counts of disorderly conduct last March without requiring he admit any wrongdoing. It was a controversial move just weeks after he'd pleaded not guilty.

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 it, specifically by handing it over to her second-in-command after announcing she had recused herself.

Smollett has pleaded not guilty to the new indictment. A judge earlier this month denied a request by Smollett to drop the new charges.

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