Dizzying turnaround in Smollett case has legal experts buzzing
Prosecutors insist police investigation was solid
CHICAGO – The surprise decision by prosecutors to drop charges against “Empire” actor Jussie Smollett shocked the legal and law enforcement community.
In Chicago, it’s not unusual for a criminal case to take years to wind its way through the court system. Legal experts said it was stunning to see the Cook County State’s Attorney’s Office go from unsealing a grand jury indictment to dropping charges against Smollett in a matter of weeks.
Question: Did prosecutors not have enough evidence to make their case?
Answer: Prosecutors maintained that they stood behind the police investigation that found Smollett paid two brothers, Abel and Ola Osundairo, $3,500 to stage an attack that made it look like the actor was the victim of an assault by homophobic, racist assailants.
Police laid out in detail how they used police video, private security cameras and rideshare records to identify the Osundairos as the assailants in the attack.
The brothers, who worked on the set of “Empire,” were arrested 15 days after the incident upon returning to Chicago from an overseas trip.
They initially resisted cooperating with police. But on the cusp of being charged in the assault, the brothers told police Smollett, 36, who is black and gay, paid them to stage the attack in hopes of boosting his profile and salary.
In addition to the brothers’ statements, police said they collected bank records and reviewed text messages between Smollett and the brothers to solidify the case.
Q: Prosecutors agreed to seal records in the case. Is that unusual?
A: Legal experts said it’s hardly unusual for prosecutors to agree to seal court records for someone with Smollett’s limited criminal history. (Smollett pleaded no contest in 2008 to a charge of giving police false information after a DUI arrest in Los Angeles a year earlier. Smollett gave officers his brother’s name, according to the Associated Press.)
The decision to seal the records in this case raised questions about whether Smollett benefited from his celebrity or if prosecutors tried to keep certain information out of the public eye.
Cheryl Bader, associate professor at Fordham Law School, said the lack of clarity from prosecutors on the decision is curious.
“I am assuming the prosecution discovered a significant blow to the credibility of prosecution’s witnesses or to the integrity of the police investigation to justify this drastic turnaround,” Bader said. “Interestingly, they did not announce charges or make statements indicating any action against the two men who were initially accused and then appear to have been the prosecutor’s witnesses in the case against Smollett. This move raises more questions than provides answers.”
Voters in Chicago are set to decide who will serve as the city’s next mayor. Both candidates urged the Cook County state’s attorney’s first deputy, Joseph Magats, to provide the public with more information about the decision.
Magats was tapped to oversee the case after State’s Attorney Kim Foxx recused herself from the investigation. Foxx stepped back from the case, because she passed on a request from Smollett’s family to Police Superintendent Eddie Johnson to hand over the investigation to the FBI.
In addition to her exchanges with a Smollett family member, Foxx disclosed she traded messages about the matter with Tina Tchen, a high-profile Chicago attorney who served as first lady Michelle Obama’s chief of staff.
Wednesday, Patricia Brown Holmes, one of Smollett’s attorneys, dismissed the notion that politics or Foxx’s interaction with the actor’s family impacted the state’s attorney’s move.
“Kim Foxx had zero to do with this,” Holmes told Fox 32 Chicago. “She recused herself. She was not involved.”
Q: Will politicians do anything but express outrage over the case? Are there any consequences for Smollett?
A: Smollett maintained his innocence, though Magats insisted that the arrangement should not be viewed as an exoneration. As part of the deal, Smollett agreed to forfeit $10,000 he put up as bond to secure his release from Cook County Jail after he was charged.
State Rep. Michael McAuliffe, who represents a district that includes parts of the city’s Northwest Side, said he will introduce legislation this week that would prohibit any production using Smollett from receiving Illinois film tax credits. “Empire” is one of several television shows that films in Chicago and is eligible for 30 percent state tax credit. The state offers an additional 15 percent credit for labor in high-poverty areas.
“Where the city of Chicago is concerned, Jussie Smollett is far from exonerated,” Rep. McAullife said in a statement. “While the state’s attorney has chosen not to pursue justice in this case, we need to send a message that Smollett’s actions are not a reflection of the values we have in Chicago and won’t be tolerated. His accusations and lies caused a lot of pain to all Chicagoans.”
Ronn Torossian, a crisis communication expert who has represented celebrities such as Sean “Diddy” Combs and Nick Cannon, predicted Smollett will have a difficult time getting film and television work.
“Generally in the world of crisis, there’s two courts to worry about, the court of law and the court of public opinion,” Torossian said. “Despite his ‘success’ in the court of law, the court of public opinion decided weeks ago that they will not support him. In today’s climate, I don’t believe the public will forgive him for this.”
One of Smollett’s attorneys, Tina Glandian, said on ABC’s “Good Morning America” that the actor is weighing whether to sue police. “For Jussie, what’s really important is he really just wants his career and his life back. Again, he did not ask for any of this. He was a victim of a crime,” Glandian said.