CHICAGO — Thirty-three months, one mayor and two police superintendents ago, before Chicago joined a nationwide reckoning on race and suffered through a deadly pandemic, the city’s attention was captivated by one man.
The alleged racial and homophobic attack on the then-“Empire” actor on a frigid night in January 2019 led to one of the most momentous minor felony cases in Cook County history.
Under an international media spotlight, the case spiraled into a tangle of rumors and culture-war flashpoints, competing lawsuits, a special prosecutor’s investigation, and a political crisis for Cook County State’s Attorney Kim Foxx.
But on Monday, when Smollett’s trial on new disorderly conduct charges is finally slated to begin, jurors will be tasked with answering only one simple question:
Did Smollett, in fact, stage the phony hate crime on himself?
The trial, which is expected to last at least a week, promises to be the highest-profile event since the Leighton Criminal Court Building was virtually shut down by the COVID-19 pandemic more than a year and a half ago.
Masks are required, seating in Associate Judge James Linn’s courtroom will be limited to observe social distancing, and cameras have been banned, meaning there will be no livestream of the proceedings.
Separating the Smollett case itself from the uproar it sparked might seem like a tall task, but special prosecutors and Smollett’s defense team will be forced to try, as Linn has been adamant that the trial evidence should focus as narrowly as possible on what happened on the street that night.
In a building that sees hundreds of murder and rape cases a year, the stakes are decidedly low. If convicted on any of the six disorderly conduct counts in the indictment, Smollett could face from one to three years in prison, but given his lack of criminal record he could also be in line for probation.
Victim to suspect
By now the contours of the story are familiar: Smollett claimed he was walking home from a Subway restaurant when two men wearing ski masks attacked him, yelling racial and homophobic slurs and hanging a noose around his neck. One of his attackers appeared to be white, Smollett said. And in the midst of the assault, one assailant yelled “This is MAGA country,” a reference to then-President Donald Trump’s slogan.
His manager called the police, and officers responded to his apartment to find Smollett with the rope still around his neck. “I just wanted y’all to see it,” he told them.
The story grabbed international headlines — particularly after two brothers, Abimbola and Olabinjo Osundairo, told police that the attack had been faked. Smollett had persuaded them to stage the assault in hopes of catching the attention of his “Empire” bosses, the brothers said.
Smollett went from victim to suspect, and ultimately was charged with giving a false report to the police.
But in a stunning move, Cook County prosecutors quietly dropped those charges shortly after Smollett’s formal indictment, causing mass confusion and an outcry that ultimately led to a special prosecutor’s appointment. The new prosecutor, Dan Webb, and his team brought a new indictment against Smollett in February 2020, just before the COVID-19 pandemic hit.
And on Monday, after COVID-19 shutdowns have been eased and questions involving his legal representations have been resolved, the evidence against Smollett will finally get a public airing in court.
In the absence of objective smoking-gun evidence, the case will largely hinge on the credibility of the Osundairo brothers. They are the prosecution’s key witnesses, and are expected to tell jurors in great detail that Smollett recruited them and instructed them to orchestrate a phony attack.
By contrast, the defense is expected to argue that the brothers, working with at least one other person, attacked Smollett outright and then framed him to avoid being criminally charged themselves.
The available evidence supports both theories, defense attorney Tina Glandian said in court earlier this year. No video exists showing the fight itself, but even if footage was available, it would be of limited use. Neither side disputes that the brothers assaulted Smollett; the question is only whether they carried out the attack at his bidding.
A text from Smollett requesting help “on the low” could be a solicitation for the attack or, as Smollett’s team has previously alleged, a request for steroid-like herbal supplements. A $3,500 check from Smollett labeled “nutrition/workout program” could be a winking payoff or, as the defense has stated, exactly what it claims to be: payment for help with training and nutrition.
So jurors likely will be left to answer more complicated questions about motivation and credibility. Why would Smollett want to stage an attack on himself? Why would the brothers agree to such a plan? And if there was no plan, why would the brothers have wanted to attack Smollett in the first place?
There is also the possibility that jurors will hear directly from Smollett, who has been adamant since the beginning that he was the victim. If he testifies, jurors will have a clear-cut question to answer: Who is more believable, Smollett or the Osundairos?
Given the immense publicity around the case, Linn is planning to ask potential jurors an unusually long set of questions, according to court records. Have they ever posted anything about the case on social media? Are they closely related to any journalists? Are they involved in any civil rights organizations, or any pro- or anti-law enforcement groups?
Despite requests from attorneys, Linn wrote in a September memo, he will not ask about particular comedians — an apparent reference to Dave Chappelle’s stand-up bit targeting Smollett — or about potential jurors’ diet and exercise. He will ask if any jurors know Foxx, but will not “discuss any particulars about Kim Foxx’s attachment or relationship to the case.”
Unlike in previous high-publicity cases, potential jurors will not be given a questionnaire to help attorneys weed out ineligible ahead of time. All questioning will be done by Linn himself, not the attorneys, the judge has said in court.
Given the backdrop, it could prove difficult to find jurors without previous knowledge of or opinions about the case, which exploded into public controversy in a time before a pandemic and widespread racial justice uprisings shifted the public’s focus.
Smollett’s allegations that he was targeted because he was Black and gay, and that the perpetrators yelled slurs and referenced Trump’s slogan, were incendiary all on their own.
In the days after the alleged attack, then-U.S. Sen. Kamala Harris condemned it on social media as “an attempted modern day lynching.” Outrage by many political and entertainment elites not only thrust Chicago into an unflattering spotlight but also put great pressure on police to find the perpetrators.
Social media sleuths, however, were quickly skeptical of Smollett’s claims, sending the internet rumor mill into overdrive. As the investigation intensified, Smollett doubled down on his story in a “Good Morning America” interview on Feb. 13, 2019, two weeks after the reported attack.
“I am an advocate. I respect too much the people — who I am now one of those people — who have been attacked in any way. You do such a disservice when you lie about things like this,” Smollett told co-anchor Robin Roberts.
So when authorities announced that, in fact, Smollett was being treated as a suspect, it was not just a Hollywood-style twist. It also made Smollett a figure of widespread mockery on the right and left. Pundits who were skeptical from the start felt vindicated, while those who had believed his claims felt stung.
“Like most of you, I’ve seen the reports about Jussie Smollett, and I’m sad, frustrated, and disappointed,” Harris posted to Facebook after Smollett was charged. “When anyone makes false claims to police, it not only diverts resources away from serious investigations but it makes it more difficult for other victims of crime to come forward.”
Local authorities, meanwhile, ever sensitive to Chicagoans’ easily wounded civic pride, claimed Smollett had embarrassed the city on an international stage.
In announcing the charges, an infuriated then-police Superintendent Eddie Johnson said at a nationally televised news conference that Smollett “took advantage of the pain and anger of racism to promote his career” and drag Chicago’s reputation “through the mud.”
More drama in court
Even the most sensational criminal investigations tend to settle down once they land in court, where procedure and decorum kick in and public attention wanes.
But in Smollett’s case, the twists kept coming.
Foxx, for her part, had informally “recused” herself before Smollett was formally charged. The office gave a public statement saying it was because of her communications with a Smollett relative, now known to be his sister Jurnee. In text messages released after public records requests, Foxx herself called that statement “bull----,” telling an aide that she actually withdrew because of false rumors that she was related to Smollett.
Nevertheless, Foxx transferred responsibility to her top deputy, Joseph Magats, a move that would have immense repercussions in the following months.
Cook County prosecutors were looking to place Smollett into a deferred prosecution from the very start, according to text messages released as part of public records requests. A deferred prosecution would not require a guilty plea; rather, Smollett would have had to participate in a 12-month program focused on community service, education and restitution. If he completed it satisfactorily, the charges would be dismissed.
“We can offer the diversion program and restitution,” Magats wrote on Feb. 20, the day Smollett was initially charged. “If we can’t work something out, then we can indict him and go from there.”
If that offer was ever made, it was rejected. Smollett was indicted by a grand jury a couple of weeks after prosecutors approved felony charges.
Shortly after Smollett pleaded not guilty, according to Smollett’s former attorneys, prosecutors approached them to ask: What can we do to make this case go away?
That touched off a week and a half of behind-the-scenes negotiations. Smollett would not plead guilty or agree to deferred prosecution, his attorneys said, insisting on a full dismissal. And so prosecutors arranged an unusual deal: Smollett would agree to forfeit his $10,000 bond to the city, and provide paperwork showing he had done two days of community service.
In exchange, prosecutors dropped the charges at an unannounced “emergency” hearing. The move allowed both sides to claim victory but gave little public clarity about whether Smollett was being exonerated or punished. As he departed the courthouse Smollett thanked “the state of Illinois” for “attempting to do what’s right.”
“I have been truthful and consistent from day one,” Smollett, his hands shaking as he read from notes, told reporters in the courthouse lobby.
Backlash was swift and unforgiving. Then-Mayor Rahm Emanuel called it “a whitewash of justice,” fuming at reporters, “From top to bottom, this is not on the level.”
As the case caught fire, prosecutors gave conflicting accounts of why the charges were dropped. That, plus the secrecy surrounding the hearing itself, created fertile ground for conspiracy theories and confusion.
Foxx’s political opponents used the uproar over Smollett as an opening for further attacks on her, culminating in a protest outside her office that was reportedly attended by members of the Proud Boys. In response, Foxx supporters claimed that the criticism was motivated by an impulse to bring down a Black female progressive.
A former state appellate judge, Sheila O’Brien, managed to successfully petition for a special prosecutor’s appointment to investigate the matter.
In a blistering ruling in June 2019, Judge Michael Toomin indicated that the entire Smollett case was void from start to finish since Foxx had not followed proper procedure in her would-be recusal. If there was an apparent conflict, she should have recused the entire office and petitioned for a special prosecutor, Toomin said.
In assigning Webb to investigate the Smollett affair, Toomin gave him two mandates: Determine if police or prosecutors had committed wrongdoing in their handling of the matter, and determine if Smollett should be brought up on criminal charges again.
Webb convened a special grand jury that indicted Smollett yet again in February 2020. And a few months later, his team released a summary of its investigation into prosecutors’ conduct.
The full report about prosecutors’ conduct is still under seal. Not even Smollett’s defense attorneys have had access to it. But a summary was released stating that, while prosecutors’ conduct was not apparently swayed by clout and did not rise to the level of criminality, they operated in a confusing gray area, and misled the public repeatedly about developments in the Smollett case.
Even in interviews with his team, Webb noted, Foxx’s prosecutors gave “significantly and meaningfully divergent explanations for how the resolution was reached.” They gave conflicting answers about who negotiated the terms, how the terms were constructed and whether Smollett was offered a chance to participate in a formal deferred prosecution program, according to the report.
When offered a chance to highlight other cases that had resolved similarly, the office could not provide any, according to the report.
While the report stops short of accusing Foxx or her employees of lying, Webb’s team repeatedly stated that she and her office “breached (their) obligations of honesty and transparency.”
The report strongly indicated that they would be reporting the conduct to the Illinois Attorney Registration and Disciplinary Committee.