Jussie Smollett files malicious prosecution counterclaim against Chicago

The actor’s lawyers also say the city cannot recover costs because it already accepted $10,000 from Smollett ‘as payment in full.’

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Jussie Smollett leaves court after charges were dropped in March 2019.

Jussie Smollett leaves court after charges were dropped in March 2019.

Sun-Times file

Taking the offense for the first time since he was accused of faking a hate crime, actor Jussie Smollett turned the tables this week by accusing the city of Chicago and multiple police officers of malicious prosecution.

Smollett’s lawyers filed their two-count counterclaim late Tuesday. They delivered it in a 49-page response to a lawsuit first filed by the city, which seeks to recover $130,106 for the investigation it conducted after Smollett made his allegedly false claim in January.

The actor leveled his new accusations against the city, the Chicago Police Department, detectives Michael Theis and Edward Wodnicki, CPD Supt. Eddie Johnson, and bodybuilding brothers Abimbola and Olabinjo Osundairo.

His move raises the stakes in a case that already threatens to lead to an all-out court battle. The actor continues to insist on his innocence, while the city accuses Smollett of a hoax even though criminal charges against him have been dropped.

U.S. District Judge Virginia Kendall refused last month to toss the city’s lawsuit against Smollett. She said, “this will be going forward” and insisted, “the city must prove the truth of these allegations to prevail at summary judgment or trial.”

“The City stands by its original complaint and will continue to pursue this litigation. The judge in this case has already ruled in our favor once, and we fully expect to be successful in defeating these counterclaims,” a city Law Department spokesman said Wednesday.

Notably, Smollett did not name Cook County State’s Attorney Kim Foxx or any member of her staff as a defendant, despite his malicious prosecution claim.

Smollett’s lawyers say statements by the Osundairo brothers, who said they helped orchestrate a fake attack on the actor, were self-serving — designed to avoid criminal charges. Still, police used the claims to pursue Smollett’s prosecution.

The ensuing 16-count indictment caused Smollett economic harm, “humiliation, mental anguish and extreme emotional distress,” his lawyers said. They added he “voluntarily provided his DNA sample and fingerprints” to FBI agents in early March. They also said his passport was confiscated and “still has not been returned to him to this day.”

Nevertheless, they said the case against Smollett ended last March “in Mr. Smollett’s favor and in a manner which indicates his innocence because all 16 counts of the criminal indictment were dismissed two and a half weeks after the indictment was filed.”

Additionally, they said the city should not be allowed to recover costs from Smollett because it accepted $10,000 from the actor “as payment in full in connection with the dismissal of the charges against him.”

Lawyers are not due back in Kendall’s courtroom at the Dirksen Federal Courthouse until Feb. 18. Meanwhile, in state court, Cook County Judge Michael Toomin in August appointed powerhouse attorney Dan Webb as a special prosecutor.

Webb was tasked with investigating the evidence against the former “Empire” actor and possibly issuing new charges, as well as reviewing how Foxx’s office handled the unorthodox and controversial decision to drop all charges against the actor.

This week, as she announced her bid for re-election, Foxx acknowledged she could have handled the Smollett case better.

“Truth is, I didn’t handle it well,” Foxx said. “I own that.”

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