CHICAGO — For the first time since his media-firestorm trial and conviction last year, Jussie Smollett returned to Cook County court Thursday to learn his sentence for orchestrating a fake hate-crime attack that shocked the nation.
His supporters have sent a flood of letters to Judge James Linn applauding Smollett’s character and seeking leniency. City officials have written they hope Smollett is required to pay more than $130,000 in overtime costs police incurred while investigating the case.
Smollett was found guilty in December on five of six counts of disorderly conduct alleging he falsely reported to police that he was a victim of a hate crime in 2019.
Smollett’s family members and supporters crowded into two rows in the gallery. The former “Empire” actor himself arrived in court about 1:15 p.m., and stood alone with his back to the courtroom while attorneys met in Linn’s chambers.
The city wants Smollett to pay back the cost of overtime that police incurred during their investigation.
The defense is expected to present several witnesses to speak about Smollett’s character. Sharon Gelman, who worked with Smollett at the nonprofit Artists for a New South Africa, described him as hardworking and enthusiastic about charitable work.
“He was one of the rare people who had the gift of making hard work fun,” she said.
The hearing began with about an hour and a half of arguments on Smollett’s request for a new trial, which Linn ultimately denied. The ruling was expected; requests are commonly argued before sentencing but almost never granted.
“We’ve talked about this for two years. I do believe that at the end of the day, Mr. Smollett received a fair trial,” Linn said.
Defense attorney Tina Glandian had asked Linn to throw out the jury’s verdict and grant Smollett a new trial. Such arguments are common before sentencing, but are granted extremely rarely.
Glandian accused prosecutors of leaning on multiple witnesses who may have been favorable to the defense. In particular, one witness testified he was “pressured and threatened” by prosecutors to say he may have been mistaken when he said he saw a white man in a ski mask running away at the time of the attack. That testimony would have corroborated Smollett’s account that one of his assailants had light skin.
In addition, Smollett’s second prosecution was fatally flawed, and should never have been brought in the first place, Glandian said. There were no valid legal grounds to appoint a special prosecutor in the Smollett case, she argued. And Smollett’s first agreement with Cook County prosecutors — 15 hours of community service and the forfeiture of his $10,000 bond — protects him from a second prosecution.
“His due process rights have been violated as a result of the (second) indictment, because he was promised not to be hauled back into court and that’s exactly what happened to him,” Glandian said.
The defense attorneys also should have had a chance to question potential jurors, Glandian argued. That would have been a break from Linn’s usual trial practice, in which he is the only person asking questions, but Glandian argued that the overwhelming negative publicity brought Smollett into court with a “presumption of guilt,” and so attorneys should have been able to participate in the process more actively.
Linn broke in during her argument and asked if she was saying he should have asked jurors every single question the defense proposed.
“You wanted me to ask the (potential jurors) ‘What kind of animal would you like to be?’” Linn said. " ... Or, ‘Superman or Batman, what do you prefer?’ You really think I was supposed to ask (that)?”
In response, attorney Sean Wieber, a member of special prosecutor Dan Webb’s team, said that none of the issues raised by the defense rose to the level of serious trial error, and some were head-scratching at best.
Wieber said in particular that Smollett’s attorneys accusing prosecutors of improperly excluding Black jurors was just the latest in repeated attempts by the actor and his supporters to “interject and weaponize race and sexual orientation into this case” and is completely without merit.
Wieber said Smollett has tried to blame everyone for his conviction, including the police, the media, the judge, the entire Cook County justice system, political figures, witnesses at trial, COVID-19 and even the jury itself.
“Page after page after page of finger-pointing” that should be ignored, Wieber said.
Ultimately, the sentencing decision is up to Linn, who will have a range of options. Smollett was convicted of Class 4 felonies, the state’s lowest-level felony category. The charges carry penalties of one to three years in prison, but also probation or conditional discharge, which is similar to probation but with less strict conditions. Linn also could require Smollett to pay a fine or restitution.
It is likely that if Smollett is sentenced on all five counts, the sentences will run concurrent with each other, but Linn would have the option to impose consecutive sentences if he determines it is necessary to protect the public from further criminal conduct by Smollett.
Courthouse observers have noted it seems unlikely that Smollett will be sentenced to prison time, given his relative lack of criminal history and nonviolent charges. But the case has been unpredictable from the start.
A jury convicted Smollett after an eight-day trial that attracted a maelstrom of national media coverage. Prosecutors successfully argued Smollett orchestrated a phony attack on himself in 2019 with the help of Abimbola and Olabinjo Osundairo, two brothers who testified that, at Smollett’s request, they yelled racist and homophobic slurs and tried to wrap a noose around his neck.
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