Attorneys for Jussie Smollett have finally filed their opening arguments as they seek to overturn the disgraced actor’s conviction a year ago for lying when he claimed to be a victim of a hate crime.
The brief was filed just before 9 p.m. Wednesday, hours before the court’s final deadline. The three-judge appellate panel had granted a fifth extension to Smollett’s attorneys in January to file their arguments but warned it would be the last.
Smollett attorney Nenye Uche said the extensions were due to delays getting records, including transcripts from the clerk’s office.
Smollett, who is Black and gay, was convicted of five counts of disorderly conduct for lying to police when reporting he was the victim of a racist and homophobic attack by two masked men in January 2019 near where he was living in Streeterville.
Prosecutors have said he orchestrated the hoax for publicity at the height of his career while acting on the Fox drama “Empire.”
Smollett was fined and sentenced nearly a year ago to probation, with the first 150 days to be served at the Cook County Jail. But he only spent six days behind bars before being released pending the appeal.
In Wednesday’s filing, Smollett’s attorneys returned to several arguments that were made ahead of the actor’s trial and that were rejected by Cook County Judge James Linn, who presided over Smollett’s case.
The brief states the actor’s right to due process was violated because he was prosecuted a second time after reaching an agreement with the Cook County state’s attorney’s office that led to his initial charges being dropped in 2019.
Prosecutors said at the time they wouldn’t pursue the 16 counts against Smollett in consideration of his community service and turning over his $10,000 bond to the city of Chicago.
The decision led a Cook County judge to appoint Special Prosecutor Dan Webb to review the office’s decision. Smollett was then indicted on new charges, which Smollett’s attorneys say violated his protection against double jeopardy.
Anticipating that Smollett’s attorneys would be making those claims again, the Office of the Special Prosecutor has repeatedly said in previous filings that those arguments are beyond the scope of Smollett’s appeal.
The brief also argues that Smollett’s rights were violated many times during his trial, including when prosecutors were allowed to reject a gay person and all but one African American from the jury.
The filing also cites alleged bias by the judge, contending his “uninvited commentary” unduly influenced the jury’s decision in the case.
The sentence Linn handed down was also excessive for the charges, especially in light of the mitigation presented by the defense, the attorneys claim.
Smollett has continued to insist on his innocence, including immediately after he was sentenced.
In an outburst during the hearing, the actor repeatedly stated, “I did not do this.” Saying he was not suicidal, he warned, “If anything happens to me when I go in there, I did not do it to myself.”
Since his release, Smollett has announced his directorial debut with the film “B-Boy Blues,” but has had no new acting credits.
