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Conversation between key witness and attorney can’t be used as evidence in Smollett case, judge says

Judge James Linn also denied a request by Jussie Smollett’s attorneys to dismiss the ongoing criminal case against the former “Empire” actor.

Former “Empire” actor Jussie Smollett walks into the Leighton Criminal Courthouse for a hearing, Monday morning, Feb. 24, 2020.
Former “Empire” actor Jussie Smollett walks into the Leighton Criminal Courthouse for a hearing, Monday morning, Feb. 24, 2020.
Ashlee Rezin Garcia/Sun-Times

A Cook County judge Thursday rejected a motion by Jussie Smollett’s attorneys to use a conversation between a key witness and his attorney as evidence in the the former “Empire” actor’s criminal case.

The conversation between Olabinjo Osundairo and his lawyer Gloria Schmidt Rodriguez was apparently accidentally recorded in an interview room at a Chicago police station after Osundairo and his brother, Abimbola Osundairo, were taken in for questioning.

Smollett’s lawyers had argued for the recording’s inclusion as evidence after they inadvertently received it as part of the discovery process and claimed it would provide evidence of a conspiracy against Smollett, who is accused of staging a hate crime against himself.

Linn said he had listened to the recording and heard nothing on it that would be considered a “bombshell” for the defense. The judge also said Schmidt Rodriguez’s conversation with Olabinjo Osundairo was covered by attorney-client privilege.

“Everybody’s got it, nobody should have it, never should have existed, nobody should have it at all,” Linn said.

The Osundairo brothers played a significant role in detectives concluding that Smollett paid the pair to help him set up a fake racist and homophobic attack near his Streeterville home in January 2019. The actor was subsequently charged, but a 16-count indictment filed against him in March 2019 was tossed weeks later in a controversial decision by the state’s attorney’s office.

After attorney Dan Webb was appointed special prosecutor in the matter, he filed a new six-count indictment against Smollett in February.

Smollett’s attorneys Thursday asked Linn to dismiss those latest charges against the actor, arguing that a special prosecutor wasn’t properly appointed, because State’s Attorney Kim Foxx publicly recused herself, but not her office, and never filed an affidavit with the court.

Smollett’s attorneys have unsuccessfully tried to get the case dismissed by arguing that the re-indictment of their by Webb was double jeopardy, and by appealing to the state Supreme Court.

On Thursday, Linn said he did not believe he had the jurisdiction to dismiss the case.

“I don’t have the authority to revisit the ruling in the first place, and if I did, I still would find Judge [Michael] Toomin was correct in his analysis appointing the special prosecutor,” Linn said.

Linn recounted how the case had ended up before him, saying “there was a tremendous outcry” about the decision to drop the charges and that it demanded review.

“This very building seemed to shake with buzz that I haven’t seen in many years ... this really rocked things around here,” he said.

Smollett’s lawyers will try again to dismiss the case at the actor’s next hearing in October, arguing in a filing Wednesday that Smollett’s constitutional rights were violated when the latest grand jury was read testimony the Osundairo brothers gave to the first grand jury.

Smollet’s attorneys say that if Toomin ruled the entire first case against Smollett was void when he appointed a special prosecutor, any testimony from the first proceedings would be invalid.