‘I am making this statement so everyone else knows. They will not get away with this’: Text from Jussie Smollett a focus trial's second day

·9 min read

CHICAGO — As rumors of a hoax were swirling around Jussie Smollett’s claim he was the victim of a hate crime attack in downtown Chicago, the “Empire” actor allegedly sent a text to one of the two acquaintances being questioned by police.

“Brother....I love you,” read Smollett’s text to Abimbola Osundairo on the afternoon of Feb. 14, 2019. “I stand with you. I know 1000% you and your brother did nothing wrong and never would. I am making this statement so everyone else knows. They will not get away with this. Please hit me when they let you go. I am behind you fully.”

The text, which had never before been made public, was shown to jurors Tuesday on the second day of Smollett’s trial on charges that he hired Osundairo and his younger brother, Olabinjo, to commit a phony racist and homophobic attack on Smollett in January 2019.

Testifying as the first witness for prosecutors, Chicago police Detective Michael Theis, one of the lead investigators on the Smollett case, noted the unusual nature of Smollett’s insistence that he was “making a statement” about the brothers’ innocence, which he had never done before publicly, either before or since.

“To this day, has Mr. Smollett ever come clean about this hate crime?” deputy special prosecutor Samuel Mendenhall asked Theis.

“Not that I’m aware of,” Theis replied.

The timing of the text was crucial, as it could easily be construed as an attempt by Smollett to get the brothers to keep quiet.

Earlier that day, Smollett had gone on “Good Morning America” and doubled down on his story that two men jumped him as he walked back to his apartment at 2 a.m. in below-zero weather, poured bleach on him, put a rope around his neck and yelled racial slurs and a pro-Trump slogan.

In the two weeks since, authorities had zeroed in on the Osundairo brothers as the culprits. Soon after the text from Smollett was sent, however, they decided to cooperate with police, and Smollett quickly went from victim to suspect.

In nearly four hours of direct examination Tuesday, Theis walked jurors step by step through the investigation, which he said was thorough and meticulous, countering the defense’s assertion during opening statements that Smollett was the victim of a nightmarish rush to judgment.

Police put in more than 3,000 man-hours on the investigation, and took Smollett’s allegations seriously, Theis said.

“This was horrible. I mean the crime was a hate crime, but a horrible hate crime. There was a noose, there was bleach,” Theis said. “It was local news, it was national news, international news. Everyone wanted to know what happened, from the mayor on down, everybody wanted answers.”

Theis said Smollett was considered a victim from the outset. But ultimately, Theis said, police “determined that the alleged hate crime was actually a staged event and that it did not occur.”

On cross-examination, Smollett’s attorney focused repeatedly on what the defense has claimed was tunnel vision by police, who believed the Osundairos’ story over Smollett’s and — according to the defense — missed or ignored key evidence and witnesses. Among them: a woman who happened to be walking her dogs nearby at the time of the attack and reportedly told police she saw a suspicious-looking white guy carrying a rope; and a security guard who claimed he saw a white man in a ski mask run past him around the same time.

Theis had testified on direct examination that the brothers told police Smollett staged the attack because he was unhappy with the “Empire” studio’s response to the threatening letter. But under questioning from defense attorney Nenye Uche, the detective acknowledged he did not call the studio to check out whether security was being taken seriously.

“So you believe the brothers (and charged) Jussie, but you don’t verify the alleged motive with the ‘Empire’ studio?” Nenye asked.

Nenye also spent time questioning Theis about various aspects of the Osundairos’ background, including that there was cocaine as well as guns and ammunition in their apartment when police searched it and that they’d traded what could be construed as anti-gay comments in text messages and on social media.

In one tweet, one of the brothers asked a follower, “Why are you following Frank Ocean, you know that n---a gay, right?” Theis said he did not interrogate the brothers about that tweet.

The defense painted the brothers in opening statements as opportunistic liars who were using Smollett to advance their own careers.

Things got tense in the courtroom later in Uche’s examination, when jurors viewed a short clip of the brothers’ police interrogation, during which one officer apparently referred to Jussie’s “pretty face.” Uche asked Theis if he thought that was appropriate, leading to an objection from prosecutors.

Amid crosstalk, Judge James Linn said from the bench: “He can say that. So what?” That prompted one of Smollett’s supporters seated in the front row of the gallery to cry out in apparent shock and disbelief, “So what?”

Shortly afterward, Uche called the comment “inappropriate,” and said he might be filing a motion, and asked for time to confer with his team. Linn sent the jury out of the room while the defense lawyers spoke among themselves in a backroom.

When he called the jury back in, Linn told the panel, “Things get testy from time to time.”

“I don’t want you to concern yourself with the fact that voices were raised,” he said. “There’s no intention certainly by the court to indicate displeasure.”

Earlier in the day. Theis, who was initially put in charge of hunting down surveillance video, walked jurors through an extensive compilation of camera footage from before and after the attack.

Prosecutors allege that the Osundairos, two brothers Smollett knew from the “Empire” set, helped him carry out the fake attack in exchange for a $3,500 payout. Smollett’s defense lawyers, however, have previously stated they believe the brothers actually attacked Smollett with the help of at least one other person, making Smollett a victim twice over: The victim of a hate crime and a frame-up.

In essence, nobody disputes that Smollett was attacked. The question is whether or not the attack was staged.

No footage exists of the attack itself. But when police found video of two people walking near the area of the attack, one of whom was wearing a red hat, Theis said they “got excited. We thought, we’re on the right track here.”

They found footage of the two men walking around the surrounding blocks at 2 a.m. in frigid temperatures, and tracked their cab back to the Lakeview neighborhood, Theis testified.

“We felt that we had to two individuals we were looking for,” Theis said. Not only did they fit the description, they paid cash for the cab and walked for nearly a mile back home. “That told us they were trying to hide their movements.”

Then there was a breakthrough: A subpoena to Uber showed the name of the person who had ordered a ride-share on the night of the attack, matching the area where they had tracked the suspects. It was Olabinjo Osundairo.

The brothers were ultimately arrested on suspicion of their involvement in the attack. While they were in police custody, Smollett gave an interview on “Good Morning America” saying there was no doubt in his mind that the two men in the surveillance footage were his attackers. Jurors viewed the video, which Theis characterized as a significant development in the case.

The brothers, who had retained an attorney, agreed after Smollett’s interview to tell police what happened, Theis said. It was in fact Smollett who recruited them to help carry out the phony attack, they said.

Police then set out to corroborate or refute the brothers’ account, a probe that included a review of more video footage and cellphone records. Their claims checked out, Theis said.

Camera footage seemingly backs up the Osundairo’s story that Smollett picked them up in an alley on Jan. 25, and similar corroboration was found for an alleged Jan. 27 “dry run” before the Jan. 29 attack, Theis said.

And jurors viewed video of the Osundairo brothers running all the errands one would need to run before committing an alleged hoax hate crime: going to the Crafty Beaver for rope, a beauty supply store for masks and hats, and a bank to deposit the check. The brothers paid their bill at the beauty supply with a $100 bill Smollett gave them, Theis said.

Jurors also were shown the now-infamous $3,500 check that Smollett wrote to Abimbola Osundairo, purportedly as a payoff for the brothers’ help. “5 week nutrition/workout program” is written in the memo line; Smollett’s team has previously stated that the check was payment for training so he could get in shape for an upcoming video shoot.

Early on in his testimony, Theis was shown a photo of the Osundairo brothers, who are Black. Smollett initially told police that his attackers may have been white.

“Are the brothers in the photograph white?” Mendenhall asked Theis, who replied, “No.”

“Are you sure?”

“Yes,” Theis said.

Near the end of his four hours of direct testimony, Theis took jurors through a series of photographs of the area where Smollett alleged he was attacked, including his high-rise apartment building that had multiple entrances and exits on various sides.

Theis said it would be implausible for the Osundairo brothers to decide to lay in wait for Smollett to come out so they could attack him unsuspectingly. Instead, the surveillance footage showed them milling about in the area, waiting to confront Smollett at a predetermined location, he said.

Prosecutors’ second witness late Tuesday was CPD Officer Muhammad Baig, who one night in January 2019 was dispatched to a report of a battery in Streeterville. The victim, he would come to learn, was Smollett.

Baig testified he responded to Smollett’s building, and the jury viewed police body-camera footage of the exchange the officer had with the actor in his apartment.

Smollett greeted officers with the noose still around his neck, Baig said, telling the jury he was shocked.

“To see such a hateful act perpetrated against somebody is something you hope you never have to see,” Baig testified, adding he asked Smollett if he wanted to take the rope off, and Smollett said he did but had wanted officers to see it first.

The Osundairos are expected to be centerpiece witnesses for the prosecution later this week.

The defense will have a chance to present witnesses when prosecutors wrap up their main case, which is expected to happen later this week. Smollett himself could also take the stand.

Before court Tuesday, Smollett’s older brother, Jojo, read a statement of support saying it has been “incredibly painful” for the family to watch the case unfold.

“We’re confident in his legal team, and we look forward to people hearing the actual facts of this case,” Jojo Smollett told the media in the lobby of the Leighton Criminal Court Building. “We love him. We’re here to support him, all of us, and to lift him up.”

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