CHICAGO (CN) — The Illinois Supreme Court on Thursday reversed former “Empire” star Jussie Smollett’s 2021 conviction on five counts of criminal disorderly conduct.
The state Supreme Court found that, in the course of Smollett’s criminal case in Chicago, the Cook County legal system violated its obligation to deal with defendants fairly.
“Specifically, we address whether a dismissal of a case by nolle prosequi allows the State to bring a second prosecution when the dismissal was entered as part of an agreement with the defendant and the defendant has performed his part of the bargain. We hold that a second prosecution under these circumstances is a due process violation, and we therefore reverse defendant’s conviction,” Illinois Supreme Court Justice Elizabeth Rochford wrote for the court’s majority opinion.
The openly gay, Black actor claimed to have been jumped by white Trump supporters late at night in January 2019 in Chicago. He said his attackers shouted racist and homophobic slurs at him, draped a noose around his neck and poured bleach on him.
But a subsequent investigation by Chicago police, led by former detective Michael Theis, led authorities to conclude the attack was a hoax Smollett staged on himself with the help of two associates, brothers Olabinjo and Abimbola Osundairo.
For leading police to investigate a bogus hate crime, a Cook County grand jury indicted Smollett on 16 counts of felony disorderly conduct in March of 2019. The Cook County State’s Attorney’s Office soon dropped the charges, and it later became public that Cook County State’s Attorney Kim Foxx did so because she thought Smollett was a “washed up celeb” who had been over-charged.
Smollett also agreed to perform community service and forfeit his $10,000 bail bond in exchange for Foxx not prosecuting the case further.
Unsatisfied, retired state Appellate Court Justice Sheila O’Brien successfully petitioned now-deceased Cook County Judge Michael Toomin to revive the case.
In August 2019, Toomin appointed Chicago attorney Dan Webb, of the law firm Winston & Strawn, as a special prosecutor to investigate alleged wrongdoing on the part of the state attorney in prosecuting the case, and to determine whether it should be renewed. In February 2020, another grand jury charged Smollett with six new counts of felony disorderly conduct for making false hate crime, battery and aggravated battery reports to several Chicago police officers.
Smollett pleaded not guilty and trial followed in late November 2021. Jurors convicted Smollett on five of the six counts he faced in early December; Cook County Judge James Linn mandated he pay a $120,000 fine and sentenced him to over two years of probation — including 150 days in jail — in March 2022.
A three-judge state appellate panel upheld his conviction in a 2-1 vote last December. On appeal to the state Supreme Court, Smollett argued that the appellate court’s majority violated the principal of double jeopardy — when one is charged twice for the same offense. He said the case should have ended after Foxx dropped the case in a nolle prosequi agreement, in exchange for his bail bond forfeiture and community service.
State Appellate Justice Freddrenna Lyle, the dissenting appellate judge hearing Smollett’s case and the only Black appellate justice on the panel, agreed that it wasn’t right for the state to take a second swing at Smollett after one of its own prosecutors decided to drop the matter.
“To suggest that Smollett entered into the agreement without the mutuality of understanding that the nolle acted as a dismissal with prejudice is to suggest either Smollett contracted for no guarantee or Smollett thought he was getting a dismissal when the State had no intention of dismissing the charges,” Lyle wrote in her dissent. “That defies logic or suggests that the state engaged in a level of gamesmanship and bad faith that should be condemned.”
The Supreme Court, in its Thursday opinion, agreed with Lyle.
“We agree with Justice Lyle that the assistant state’s attorney’s statement on March 26, 2019, clearly showed that the parties intended finality,” Rochford wrote. “Again, the assistant state’s attorney stated that this outcome was a ‘just disposition and appropriate resolution to this case.’ This is not the statement of someone who intends to refile the charges.”
Rochford also wrote that it “defies credulity to believe that defendant would agree to forfeit $10,000 with the understanding that Cook County State’s Attorney’s Office could simply reindict him the following day.”
Initiating a second round of prosecution, Rochford added, did more than just allow the state to call an unfair mulligan on Smollett’s case. She concluded it could potentially set an “untenable” precedent allowing the state to take as many swings at defendants as it wanted, regardless of whatever other agreements it offered those defendants.
“We are aware that this case has generated significant public interest and that many people were dissatisfied with the resolution of the original case and believed it to be unjust,” Rochford wrote. “Nevertheless, what would be more unjust than the resolution of any one criminal case would be a holding from this court that the State was not bound to honor agreements upon which people have detrimentally relied.”
Rochford was joined in her opinion by Justices P. Scott Neville, David Overstreet, Lisa Holder White and Mary O’Brien. Chief Justice Mary Jane Theis and Justice Joy Cunningham did not join the majority but issued no dissents.
Dan Webb, in a statement emailed to Courthouse News, said he was “disappointed” with the Illinois Supreme Court’s decision but argued it had nothing to do with the facts behind Smollett’s conviction.
“The Illinois Supreme Court did not find any error with the overwhelming evidence presented at trial that Mr. Smollett orchestrated a fake hate crime and reported it to the Chicago Police Department as a real hate crime, or the jury’s unanimous verdict that Mr. Smollett was guilty of five counts of felony disorderly conduct,” Webb wrote, adding later that Smollett “is not innocent.”
Webb also said Chicago could still pursue civil claims against Smollett and attempt to recoup the $120,000 in overtime pay for police investigating Smollett’s hate crime claims.
Smollett’s own attorney Nenye Uche did not immediately return a request for comment on the development.