Emily D. Baker
What happened in the Jussie Smollett case and Will Jussie Smollett go back to Jail?
On December 9, 2021 actor Jussie Smollett was convicted of hoaxing a hate crime against himself, and in the course of that hoax made multiple false reports to the police. On March 11, 2022, Smollett was sentenced after the Judge stated to Smollett “you’re just a charlatan pretending to be a victim of a hate crime, and that’s shameful.” The Judge further stated that Smollett has “done real damage to victims of hate crimes” and that he “lied and kept lying”. The Judge sentenced Smollett to 150 days in jail, 30 months of Felony probation, a fine of $25,000, and restitution of a little over $130,000 to the city of Chicago reduced for the $10,000 in forfeited bail bond that Smollett previously paid. On March 16, 2022, the Appellate Court granted Smollett’s request to stay (pause) his sentence pending appeal and he was released from custody. This case feels like it’s been a whirlwind since it started and we need to take a look at everything that has happened to have context for the arguments on appeal and what will happen next.
On January 29 2019 it became public that Jussie Smollett had been the victim of an alleged hate crime after 2 am when he was out getting some Subway in the middle of the Polar Vortex. There were many that flooded Smollett with support, there were some that questioned his story. Those questioning this crime were not well received in the days after this was made public. The New York Times headline was “Jussie Smollett, star of ‘Empire’, Attacked in What Police Call a Possible Hate Crime.” Actors and political figures including now President Biden and Vice President Harris tweeted their support for Smollett.
Harris said that JussieSmollett “is one of the kindest, most gentle human beings I know. I’m praying for his quick recovery. This was an attempted modern-day lynching. No one should have to fear for their life because of their sexuality or the color of their skin. We must confront this hate.”
On February 11, 2019 Smollett turned over some cell phone records which police call ‘heavily redacted’, it seems that Smollett remains reluctant to completely cooperate with the investigation despite statements to the contrary. February 14, 2019 Smollett goes on GMA and gives a detached version of events, and later in the day the Osundario brothers are arrested as suspects in the alleged hate crime but are not charged. Smollett is charged by police with disorderly conduct/filing a false police report on February 20, 2019 and he is arrested the next day. Following Smollett’s arrest he is suspended from Empire, a decision that is made final in the months to follow.
March 7, 2019 Smollett is indicted on 16 counts of Disorderly Conduct for making false statements to police/filing a false report and he plead not guilty seven days later. To everyone's surprise the charges were suddenly dropped on March 26, 2019. The prosecutors at that hearing stated:
“After reviewing the facts and circumstances of the case, including Mr. Smollett’s volunteer service in the community and agreement to forfeit his bond to the City of Chicago, the State’s motion in regards to the indictment is to nolle pros. We believe this outcome is a just disposition and appropriate resolution of this case.” (March 26, 2019 hearing Tr. pg. 2-3 Ln 20-3)
This case disposition nolle pros, or declining to prosecute, is the crux of the Appeal that is the grounds for Smollett’s recent release from custody. At the end of March the city of Chicago demands Smollett pay for the overtime used by the department to investigate this case the amount totaled over $130,000.
April 5, 2019 on the heels of the questions surrounding the sudden dismissal of the charges a retired Judge in her own capacity filed a petition to appoint a special prosecutor. On the heels of an attempt to reopen this case the City of Chicago sues Smollett for the overtime compensation, that lawsuit is still pending. In the spirit of lawsuits the Osondario brothers sue Mark Geragos, his firm and other attorneys at his firm for statements they made about the brothers in the course of their representation of Smollett. The lawsuit has gone through a lot of litigation and a few of the claims still remain against one of the lawyers from the Geragos firm only. However, on March 18, 2022 the Geragos firm and Mark Geragos have sued the Osundario brothers and their lawyers for filing the defamation lawsuit alleging that it’s a frivolous lawsuit.
On June 21, 2019 the motion for Special Prosecutor is granted, then in August Dan Webb and his firm are appointed to look into the circumstances surrounding the dismissal, into States Attorney Kim Foxx and ultimately to re-indict Jussie Smollett on February 22, 2020. Shortly after the new indictment, Smollett’s legal team filed an emergency appeal to the Illinois Supreme Court and a Motion to Dismiss at the trial court. Both of these motions were later denied. These motions are the first time that the Defense argues that Smollett cannot be prosecuted on the second indictment based on Double Jeopardy, the argument that is being made in the current appeal. It’s interesting to me that when the Motion to Dismiss was denied by the trial court in June 2020 the defense chose not to appeal the decision.
In November 2021 the Smollett trial begins and he is convicted on December 9, 2021. Smollett was sentenced on March 11, 2022 to 150 Days in County Jail, 30 months of Felony Probation a court fine of $25,000.00 and restitution in the amount of over $130,000.00 with credit for the $10,000.00 bond that was previously forfeited. The court has very strong words for Smollett and as he is taken into custody Smollett indicates that he is innocent. His legal team files a Motion to Stay Sentence on March 11, 2022. On March 16, 2022 the Motion is granted and the stay of sentence is imposed. The Appellate court said;
“The motion of the defendant Jussie Smollett to stay his sentence of incarceration and to grant him a bond pending the disposition of his appeal until further order of this Court is Granted.” The court further stated that it’s their finding “that the defendant has been convicted on non-violent offenses and that this Court will be unable to dispose of the instant appeal before the defendant would have served his entire sentence of incarceration.”
This stay of sentence is the right result, but it doesn’t mean he will win on appeal.
Will Double Jeopardy cause Jussie Smolletts Conviction to be overturned?
The heart of Jussie Smollett’s appeal is that he is being punished twice for the same offenses and therefore his 5th Amendment right against Double Jeopardy has been violated. This argument has been raised prior to trial and again after trial, it’s been denied twice. The question that matters most here is did Jeopardy apply? It is well settled that Jeopardy attaches at a jury trial when the jury is sworn in, at a bench trial when the first witness is sworn in and at a plea when the guilty plea is accepted by the court. Smollett’s attorneys are trying to argue that the forfeiture of the $10,000.00 bond is a punishment and therefore Jeopardy did attach. The prosecution previously argued and likely will again that because this was a voluntary forfeiture, no plea was entered and a non prosecution generally does not attach Jeopardy then it shouldn’t in this case. Additionally, the charges in the second indictment cover different reports to different officers and likely will not be considered the same ‘offense’. I break down these arguments further in Episode 135 of The Emily Show Podcast.
Is this case different than what happened to Bill Cosby?
While at first look the cases may seem similar, with a deeper look they are easily distinguishable. In Smollett’s case he was prosecuted on a second indictment for charges arising from different statements, on different dates than in the first indictment. Further, the dismissal of the first indictment occurred less than a year before the second indictment was filed. While Smollett did forfeit a $10,000.00 bond to the city it was characterized as a voluntary forfeiture and not a punishment for the case as he didn’t plead guilty and continued to maintain his innocence.
In the case of Bill Cosby he was prosecuted over a decade after prosecutors agreed that he would not be prosecuted in order to allow him to be deposed in a civil suit arising from the same incident. He testified under oath at a deposition that allowed for a resolution of the suit with a reported three-million dollar settlement to the victim. When prosecutors initiated prosecution of Cosby they used the testimony at deposition against him, the Supreme Court of Pennsylvania found that this action violated his Fifth Amendment Right against Self Incrimination stating in their opinion:
“When an unconditional charging decision is made publicly and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness, particularly when it results in a criminal prosecution that was foregone for more than a decade. No mere changing of the guard strips that circumstance of its inequity.” (Commonwealth of Pennsylvania v. William Henry Cosby Jr., 39 MAP 2020)
What Comes Next?
This case has moved forward to discovery, the process of gathering evidence from the other side. That can include turning over documents, photos, answering questions under oath, and sitting for depositions. On February 8, 2022, the court asked for a joint written discovery status report by March 7, 2022. Media outlets are reporting that depositions have been scheduled for both Prince Andrew and Virginia Giuffre which is a regular and necessary part of civil litigation.
What Happens Next
The full appeal in the Smollett case will be filed by his attorney’s and the prosecution will have an opportunity to respond. There will likely be a date set for the parties to argue the case before an appellate panel of judges and then we wait for them to issue a ruling. It will be an interesting case to follow.
Videos about the Case
Lawyer Reacts | Jussie Smollett Should Lose His Appeal (March 24, 2022)
LAST UPDATED: March 30, 2022
Virginia L. Giuffre v. Prince Andrew, Duke of York
On August 9, 2021, Virginia Giuffre sued Prince Andrew Duke of York for two causes of action, Battery and Intentional Infliction of Emotional Distress in the Southern District of New York. The civil lawsuit causes of action emanate from Virginia Giuffre being trafficked by Jeffery Epstein.
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