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Former prosecutor can represent Jussie Smollett but can’t question Osundairo brothers: Judge

Nenye Uche was hired as Smollett’s lead defense attorney earlier this year, but Special Prosecutor Dan Webb objected, saying he had spoken with the Osundairo brothers before, and therefore, had a conflict of interest.

Attorney Nenye Uche, left, and Jussie Smollett leave a hearing at the Leighton Criminal Courthouse on July 14, 2021.
Attorney Nenye Uche, left, and Jussie Smollett leave a closed-door hearing at the Leighton Criminal Courthouse on July 14, 2021.
Anthony Vazquez /Chicago Sun-Times

A former Cook County prosecutor will be allowed to represent former “Empire” actor Jussie Smollett.

But Nenye Uche can’t question Abimbola and Olabinjo Osundairo, the brothers who would be key witnesses for the prosecution if the criminal case goes to trial, a judge ruled Friday.

Smollett is facing disorderly conduct charges for allegedly lying to Chicago police about being the victim of a hate crime.

Uche was hired as Smollett’s lead defense attorney earlier this year, but Special Prosecutor Dan Webb objected, saying Uche had spoken with the Osundairo brothers before, and therefore, had a conflict of interest.

The Osundairos — who said they were hired by Smollett to stage a phony attack against the actor near his Streeterville apartment in 2019 — said they had discussions with Uche about representing them.

Evidence presented at a closed-door hearing earlier this month “clearly and convincingly” showed that Uche talked to both brothers and their mother, but that the conversations were “neither improper, unethical or unusual,” Judge James Linn wrote in his 10-page ruling filed Friday.

Among the issues discussed with the brothers were a $3,500 check, a search warrant and items seized, the laws about hate crimes and the handling of media demands, the ruling said.

Because of that, Uche won’t be allowed to cross examine the brothers if the case makes it to trial, Linn said.

Uche issued a combative statement after Linn’s ruling was released Friday, saying he believed “The judge reached the right conclusion, but, the wrong way. And that issue will be addressed at the right time.

“This was an attempted coup on the Sixth Amendment right to an attorney of one’s choice, a right that every American enjoys, and it failed,” Uche wrote.

The Osundairos’ mother, Ola, was the first to reach out to Uche, as well as other attorneys, when her sons were taken to the Chicago Police Department’s Area Central headquarters for questioning, the ruling said.

Among the lawyers Ola Osundario reached out to was Gloria Schmidt-Rodriguez, who arrived at the police station first and was already representing the brothers by the time Uche and another attorney, Shay Allen, arrived, according to the ruling.

“Mr. Uche and Mr. Allen then left the police station without an attorney-client relationship having been formed,” Linn wrote.

When a front door to the Osundairos’ home was badly damaged during a police raid, the brothers agreed to be housed at a South Loop hotel, rather than return to the home where reporters waited outside, court documents show.

During their stay at the hotel, the brothers’ relatives, including their mother, reached out to them and Uche.

Uche was never paid and no contracts were signed, but at that point, the “threshold criteria for an attorney-client relationship had been met,” Linn wrote.

The judge said he was balancing that with the fact that “the only person whose liberty is at stake in this matter is the defendant Mr. Smollett.”

Linn found the Osundairos “entirely credible,” said Schmidt-Rodriguez, who continues to represent the brothers.

“The relief granted by the court today will accomplish protecting those communications by barring Attorney Uche from cross-examining them when they take the stand,” Schmidt-Rodriguez said in a statement Friday.

Linn said he did pause by an “obvious question” of how “out of all the lawyers in America” Smollett recruited Uche to represent him.

That question “is acknowledged but will otherwise not be addressed,” Linn said in his ruling, adding that further inquiry would slow the case’s movement toward its conclusion and “would not be in the interest of justice.”

“The Court firmly believes that the interest of Mr. Smollett to have the lawyer of his choice when his liberty is at stake outweighs any other valid and good faith concerns of the [Office of the Special Prosecutor] and the Osundario family witnesses,” Linn wrote.