An Illinois appeals court upheld Jussie Smollett’s disorderly conduct convictions, which his lawyers appealed, after the actor was accused of faking a racist and homophobic attack against himself in January 2019 and lying to the Chicago police about it.
The “Empire” star, who is Black and gay, challenged evidence, the jury selection and the role of a special prosecutor as part of the appeal filed in March of this year, along with raising questions about other aspects of the case. A jury had convicted Smollett on five felony counts of disorderly conduct, a charge that can be filed in Illinois when a person lies to police.
Now that the appeal has been dismissed, Smollett’s hopes to avoid serving the rest of his 150-day jail sentence lay with the state supreme court. If it doesn’t take up his case, or if his next appeal fails, he must finish the sentence. He only spent six days in prison previously while the appeal was processed.
The appeal, filed on March 1 in the Illinois First Judicial District appellate court, argued that Smollett’s prosecution violated his due process rights. That includes what the actor’s attorneys described as a failure to enforce a binding non-prosecution agreement.
The arguments raised were shut down by a 2-1 opinion, but Smollett’s lawyers said they plan to appeal further.
“We are preparing to escalate this matter to the [Illinois state] Supreme Court,” Smollett spokeswoman Holly Baird said, according to the Associated Press.
Baird also noted that the opinion at the appellate court wasn’t unanimous.
Smollett was found guilty of staging the hate crime in December 2021. The jury of six men and six women deliberated for more than nine hours before reaching the verdict that the attack was a hoax.
An investigation of the racist and homophobic hate crime, which Smollett reported to police and consisted of two men he said attacked the actor wearing ski masks, found that he had orchestrated the situation. Authorities said he paid the men, whom he knew from working on “Empire” after filming the show in Chicago.
Appellate Justice Freddrenna Lyle said she would have thrown out the convictions because it was “fundamentally unfair” to appoint a special prosecutor and charge Smollett when he had already performed community service as part of a 2019 deal with Cook County prosecutors to close the case.
“It was common sense that Smollett was bargaining for a complete resolution of the matter, not simply a temporary one,” Lyle said.
When the case was first dropped, special prosecutor Dan Webb was appointed to look into why. In 2020, a grand jury restored the charges against Smollett, and Webb found that the state’s attorney’s office had practiced “substantial abuses of discretion” during the earlier consideration of the case.
Appellate justices David Navarro and Mary Ellen Coghlan said in the majority opinion that Smollett was not immune to a fresh round of charges.
“The record does not contain any evidence that [prosecutors] agreed Smollett would not be further prosecuted in exchange for forfeiting his bond and performing community service,” they said.