Former Empire star Jussie Smollett has filed an appeal of his 2021 conviction for faking a hate-crime attack in Chicago in early 2019.
“The renewed prosecution of Mr. Smollett violated his due process rights,” attorney Heather Widell wrote in the court document filed Thursday (read it here), “because (1) Mr. Smollett fully performed his part of a non-prosecution agreement with the state by performing community service and forfeiting his $10,000 bail bond; and (2) the state benefited from taking and keeping Mr. Smollett’s bail bond without performing its end of the bargain. Thus, the violation of due process was prejudicial and requires reversal of Mr. Smollett’s convictions and a dismissal of the charges against him.”
The filing also cites double-jeopardy protection tied to the actor being “punished for the same offenses by his performance of community service and forfeiture of his bond.”
In a case that stunned Hollywood at first, Smollett was convicted of five felony charges stemming from what the actor said was a hate-motivated attack as he was leaving a Chicago restaurant in the early-morning hours on January 29, 2019. He told police then that two suspects began yelling racial and homophobic slurs and then attacked him, punching him before pouring an unknown chemical substance over him. At some point during the attack, one of the suspects wrapped a rope around Smollett’s neck before they fled, the actor told police.
Chicago police made two arrests in the high-profile case a couple of weeks later, but soon began to doubt Smollett’s story, saying he was an “active participant” in the alleged crime. He was arrested on February 21, 2019, and indicted on felony charges the next day. His Empire showrunner Lee Daniels and Fox backed the actor at first, but he was dropped from the final episodes of the musical drama’s fifth season a day after the indictments. Smollett was released on $100,000 bail.
The case took a wild turn about a month later, when prosecutors suddenly dropped the charges and expunged his record, setting off a battle between Chicago police, backed by then-Mayor Rahm Emanuel, and the Cook County prosecutors. “He took those laws and turned them inside out and upside down,” Emanuel said, repeatedly reminding reporters that a grand jury heard the case and brought the charges against Smollett. Rival protests then broke out in the Windy City, and prosecutor Kim Foxx defended her decision to drop the charges, saying later that she received “racially charged” threats.
A week after the charges were dropped, the City of Chicago sued Smollett for over $130,000 in police overtime it reportedly cost to investigate the case, which officials said the actor refused to pay. Two months after that, a special prosecutor was assigned to look into the case again. And in February 2020, just before the Covid pandemic took hold, Smollett was indicted again, this time on six counts of disorderly conduct.
Smollett’s attorneys fought the new indictments, but the Illinois Supreme Court rejected their bid to halt them, and the actor’s new criminal trial began in late November 2021. He was convicted again about two weeks later. On March 10, 2022, the actor was sentenced to 150 days in jail and 30 months probation but would walk out of jail less than a week later after the Illinois Appellate Court granted a motion from his lawyers for a stay of the sentence.
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