A state appeals court panel has affirmed the conviction and sentence of actor Jussie Smollett for lying to police about being the victim of a hate crime that he was accused of staging for publicity.
Despite that, a spokeswoman for the actor said Friday after the decision was released that Smollett plans to continue to fight his conviction and would take the case to the Illinois Supreme Court.
“We wish to highlight that the decision was divided, with Justice Lyle offering a detailed analysis in favor of Smollett. We are preparing to escalate this matter to the Supreme Court, armed with a substantial body of evidence,” the spokeswoman wrote in a statement.
Smollett has 35 days to file a petition with the state’s highest court, which could decline to hear the case, send it back to the appellate court for review or back to the trial court, legal experts told the Sun-Times.
If Smollett petitions the court’s justices, he is unlikely to have to report to Cook County Jail anytime soon. However, if the state Supreme Court declines to hear the case, the matter would be sent back to Cook County to set a date for the actor to surrender himself to jail.
A Cook County jury found Smollett guilty of five counts of disorderly conduct in 2021, and he was sentenced to 30 months of probation, with the first 150 days to be served at Cook County Jail.
Smollett appealed the conviction and was released while it was pending after spending six days of the sentence behind bars.
The charges stemmed from the actor’s claims that he was attacked by two men who made remarks indicating they were supporters of President Donald Trump while beating him, dousing him with a bleach-like substance and hanging a thin, rope noose around his neck as he walked to his Streeterville apartment in January 2019.
At the time, Smollett was a rising star on the cast of the hit television show “Empire” and attempting to launch a music career.
Word of the alleged attack quickly spread in the media, and the actor received support from many high-profile figures. Chicago police said they dedicated thousands of hours to investigating Smollett’s claims, only for the evidence to point to the actor’s involvement in staging the attack.
Smollett was charged the next month with disorderly conduct for filing a false police report. He pleaded not guilty.
But in a stunning decision that March, State’s Attorney Kim Foxx’s office announced it was dropping all charges after reaching an agreement with the actor to use his bond to pay restitution to the city. Smollett was not required to admit guilt as part of the deal.
The decision has dogged Foxx since. A special prosecutor was appointed to review it, and while while their report did not find criminal wrongdoing, Special Prosecutor Dan Webb wrote there were “substantial abuses of discretion and operational failures.”
Webb later brought a new indictment against Smollett, charging the actor a second time, which eventually led to his conviction.
“It’s a good day, I was pleased by the court’s decision,” Webb said when reached by phone Friday. “It’s been a long process.”
Smollett has steadfastly denied he was involved in orchestrating the attack, including when he took the stand at his trial. But testimony from brothers Abimbola and Olabinjo Osundairo, who said Smollett paid them to take part, and video showing Smollett driving all three around to plan the attack sunk the actor in the eyes of the jury.
During Smollett’s sentencing, Judge James Linn, who oversaw the trial and retired earlier this year, chastised the actor, saying “There are people who are actual genuine victims of hate crimes that you did damage to.”
Smollett responded by repeatedly shouting he wasn’t suicidal after the sentence was handed down and warned “if anything happens to me when I go in there, I did not do it to myself.”
In his appeal, Smollett’s attorneys argued the second round of charges against the actor violated his agreement with Cook County prosecutors and claimed Linn’s sentence was excessive.
In the 2-1 decision released Friday, Justices David Navarro and Mary Ellen Coghlan affirmed the conviction and said they did not find his sentence unreasonable.
“The record does not establish that Smollett entered into a nonprosecution agreement ... in exchange for his performance of community service and the forfeiture of his bond,” the opinion written by Navarro stated.
Justice Fredrenna Lyle dissented, saying she would have overturned the conviction.
“Smollett did not enter into a plea agreement with the State, but a bilateral agreement took place, which bound the State, nonetheless,” Lyle wrote. “The majority contends that there is no evidence in the State’s agreement that the parties intended for the agreement to be tantamount to a dismissal with prejudice. I disagree.”
Richard Kling, a professor at Chicago–Kent College of Law, said the question may be interesting enough for the state Supreme Court to consider, noting that actor Bill Cosby’s sexual assault conviction was overturned by Pennsylvania’s highest court on similar arguments.
“I think that’s [Smollett’s] strongest argument and best chance,” Kling said.
