A Cook County judge Wednesday rejected the latest attempt to dismiss charges against former “Empire” actor Jussie Smollett.
It was the third time Judge James Linn denied a motion to drop the case since Smollett was indicted earlier this year for the second time for allegedly lying to police about being the victim of a racist and homophobic attack near his Streeterville home.
Special prosecutors violated the actor’s right to due process when they presented previous testimony given by two key witnesses to the grand jury that indicted Smollett earlier this year, the actor’s attorneys argued.
In 2019, Abimbola and Olabinjo Osundiaro testified before another grand jury, leading to charges against Smollett. Those charges were later dropped in a now notorious decision by State’s Attorney Kim Foxx’s office.
The 2019 testimony was read to the second grand jury that eventually indicted Smollett on six counts of filing a false report in February.
When Judge Michael Toomin appointed a special prosecutor to review the state’s attorney’s office’s decision to drop the 2019 case, “it literally nullified every single act that stemmed from this initial prosecution,” defense attorney Tina Glandian said.
“They can’t have it both ways,” Glandian said of special prosecutors’ use of the Osundiaro brothers’ testimony from the first grand jury proceedings. Special prosecutors could have simply called the brothers back to testify before the second grand jury, she argued.
Toomin never invalidated earlier sworn testimony with his ruling, special prosecutors said Wednesday.
Linn agreed.
“You had a properly empaneled grand jury that heard sworn testimony,” Linn said.
“I can’t find fault, or say that this amounts to [a] due process violation to ask [for] the extraordinary remedy of a dismissal of the indictment ... so that motion is denied.”
Smollett, who is Black and openly gay, told Chicago police he was jumped by two masked white men who shouted homophobic and racist slurs while punching him and pulling a thin rope noose over his head on his way home from a Subway location in January 2019.
After police arrested the Osundairo brothers, the pair played a significant role in leading detectives to believe the actor had staged the alleged attack.
