The trial of actor Jussie Smollett is set to resume Monday, and there would seem to be plenty of dramatic turns left in a saga that has spent almost three years in the headlines.
Smollett’s lawyers have yet to say whether the actor will take the stand, but veteran attorneys say it’s almost certain the “Empire” star will have to tell his story himself to win over the jury.
The defense is expected to call several more witnesses to try to poke holes in Special Prosecutor Dan Webb’s theory that Smollett hired brothers Olabinjo and Abimbola Osundairo and staged the attack himself.
Smollett’s attorneys have repeatedly raised questions about whether police sufficiently pursued leads about a woman who reported seeing a suspicious white man with a rope in the hours before the attack, as well as a security guard in the River North area who claimed he saw a white man in a ski mask run past him around the time of the alleged attack.
The defense team has also questioned police officers on the stand about a taxi driver who allegedly saw one of the Osundairo brothers using a cellphone in his cab that night, contradicting both brothers’ claims they left their phones at home at Smollett’s request.
On Thursday, Judge James Linn told jurors that he expected to send them the case for deliberation on Monday or Tuesday at the latest after giving them a long weekend with Friday off.
The defense team began calling witnesses Thursday after Webb rested the state’s case, closing out with testimony by each of the Osundairos that took up two days of the trial.
The brothers said Smollett paid them to fake a hate crime in which they would rough him up, shouting gay and racial slurs while wearing “Make America Great Again” hats, then loop a noose over his head and douse him with bleach.
Smollett’s motive, they said, was dissatisfaction with the way the television studio behind his then-hit show “Empire” had handled his security after he received a piece of hate mail — which prosecutors have also said the actor fabricated. Smollett, they said, staged the attack near a police surveillance camera in order to get video of the assault that he could post to social media.
Late Thursday, Smollett’s former music manager testified that he was on the phone with the actor when “he got jumped.” Brandon Moore said he was talking about midnight from Los Angles about details for an upcoming concert Smollett was going to perform at when he heard someone use an anti-gay slur.
Moore said he heard Smollett respond to the person, and then heard scuffling until the actor apparently dropped his phone. When Smollett got back on the line, he told Moore he had been jumped and “sounded panicked... and out of breath.” Moore told him to get back to his home.
Dr. Robert Turelli, who treated Smollett at Northwestern Memorial Hospital’s emergency room, said Smollett had cuts on his face, redness around his neck and complained of pain to his ribs.
Smollett was given Tylenol for the pain, according to Turelli, who said Smollett’s medical records indicated he had declined other medications. A CT scan and X-rays were also ordered, which ruled out additional injuries. Under cross examination, Turelli said he had no way of knowing how Smollett was injured.
Thursday’s final defense witness was Smollett’s L.A.-based publicist, Pamela Sharp, who described the actor as a “a very nice person” who “always paid his bills on time.”
Smollett’s career was reaching new heights at the time of the attack, Sharp said. He was directing episodes of “Empire” and earning $2 million per season at that point. He was also preparing for a “historic” storyline on the show where his character would be married in the first nationally televised wedding of a gay Black man.
Sharp said she believed Smollett was innocent — a comment the judge immediately told the jury to disregard — and said she doubted he would have participated in an attack that might damage his face, which she called the “key to every actor’s career.”
April Preyar, a Chicago defense attorney who has watched most of the trial as one of the few spectators in courtroom gallery, said that she came to the trial assuming Smollett’s case would be a slam dunk for the prosecution.
After four days of the trial, Preyar believes the defense has put some dents in the state’s case — but to get an acquittal, Smollett has to take the stand with a plausible story and a personality that wins over jurors.
“He has to take the stand. He is the only one that can tell the story, the only one who was there besides the brothers,” Preyar said.
Attorney Kulmeet “Bob” Galhotra, who has followed the case closely online and in the press, said he still thinks jurors are likely to convict, simply because Smollett’s version of the case— that the Osundairos were secretly homophobic and tried to exploit the openly gay Smollett to boost their acting careers — is more convoluted than the notion that Smollett just planned the attack and hired them.
“But [Smollett] has to hit the stand to tell it,” said Galhotra, who added the actor will need all his acting chops to keep his cool under cross-examination.
“He’s gotta perform, but it’s still going to be problematic for the defense.”
On the witness stand, Preyar said she can only assume Smollett will come across well.
“I think he testifies,” she said. “And [the trial] is going to come down to, who does the jury like better: Ola and Abel, or Jussie?”