Attorneys for former Empire actor Jussie Smollett are appealing their client’s 2021 conviction for allegedly perpetrating a hoax by claiming he was the victim of an anti-gay hate crime in Chicago back in 2019.
Smollett, who is Black and openly gay, claimed he was attacked by two masked men in Chicago’s Streeterville neighborhood while talking on the phone to his agent on Jan. 29, 2019.
He claimed that the men — one of whom was wearing a red hat similar to those worn by supporters of former President Donald Trump — shouted racist and homophobic slurs at him, beat him, put a noose around his neck, and poured a chemical believed to be bleach on him.
Smollett’s manager, Brandon Moore, claimed at the time that he heard the attackers calling Smollett an “Empire faggot [racial expletive]” and shouting “This is MAGA country!”
In a document filed on Wednesday in the Illinois First Judicial District appellate court, Smollett’s lawyers argue that his prosecution violated his due process rights, in part by not enforcing a binding non-prosecution agreement reached with the office of Cook County State’s Attorney Kim Foxx, reports CNN.
The appeal also argues that Smollett was subjected to double jeopardy, on the grounds that he was charged twice for the same crimes. In February 2019, Smollett was initially indicted on 16 charges related to making a false report to police, but the Cook County State’s Attorney’s Office later dropped those charges a month later, reaching a deal in which the actor agreed to forfeit his $10,000 bond and do community service.
“If Mr. Smollett’s convictions are allowed to stand, this case will set a dangerous precedent by giving prosecutors a second bite at the apple any time there is dissatisfaction with another prosecutor’s exercise of discretion,” Smollett’s lawyers wrote in their appeal.
The decision by Foxx’s office to drop the charges against Smollett enraged conservatives — who were suspicious about the details of the case and suspected Smollett was smearing Trump supporters as part of a hoax — as well as then-Chicago Mayor Rahm Emanuel and Chicago Police Superintendent Eddie Johnson, who were incensed that Chicago police had expended significant resources in trying to locate the perpetrators of the alleged hate crime.
Critics demanded that a special prosecutor be appointed to determine whether new charges should be filed against Smollett, with some alleging that Foxx’s office dismissed the charges because of Smollett’s celebrity status.
Foxx had previously removed herself from the case, saying it was because she had earlier contact with representatives for Smollett. She appointed her deputy, Joseph Magats, to lead the prosecution of the case.
In June 2019, a Cook County circuit judge appointed special prosecutor Dan Webb to investigate the handling of Smollett’s case and gave him the authority to pursue charges against Smollett if necessary.
Seven months later, a grand jury, acting on Webb’s decision to bring new charges against the actor, indicted Smollett on six charges of disorderly conduct for making false reports to police.
At trial, prosectors argued that Smollet had hired two men, paying them $3,500 to help stage the hate crime, in an attempt to get publicity and a career boost. He was later found guilty on five of the six charges and sentenced by Cook County Judge James Linn to 150 days in jail, 30 months of probation, and ordered to pay restitution of more than $120,000 to the city, in addition to a $25,000 fine.
Smollett was released from jail less than a week following his conviction after an Illinois appeal court granted a emergency motion to delay his sentence and grant him bail until his appeal is resolved.
In their complaint, Smollett’s lawyers also take issue with Webb’s appointment as special prosecutor, and argue that the sentence against their client was “excessive.” They have asked that Smollett be granted a new trial, with a different judge.
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