Former “Empire” actor Jussie Smollett, 41, lost his appeal to overturn his felony conviction and sentence for staging a hate crime on himself in Chicago, Illinois, back in 2019, another win for the Office of the Special Prosecutor (OSP).
The First District Appellate Court in 2-1 decision Friday written by Justice David Navarro stated at the outset that Smollett’s challenge of “virtually every aspect” of Special Prosecutor Dan K. Webb’s prosecution was denied, including challenges of Webb’s appointment itself and a trial court decision to allow jurors to see his full Good Morning America (GMA) interview from February 2019 during deliberations.
“For the following reasons, we affirm Smollett’s convictions and sentence,” Navarro began.
Dan Webb was appointed to conduct an independent investigation of Smollett after the office Cook County State’s Attorney Kim Foxx controversially “nol-prossed” an initial felony case against the actor in exchange for community service.
While Justice Mary Ellen Coghlan concurred with Navarro in affirming the conviction and sentence, Justice Freddrenna M. Lyle was the lone dissenter, warning: “The matter boils down to one of procedural fairness. If a nolle agreement [not to prosecute] has no effect, the State can reinstate charges for any number of defendants for whom it has entered nolles.”
The majority opinion, on the other hand, rejected Smollett’s arguments one by one, including the “contention” that the deliberating jury shouldn’t have been able to see his full GMA interview after only seeing part of it during trial.
Jussie Smollett appears on Good Morning America for Robin Roberts interview on Feb. 15, 2019 (Good Morning America/screengrab)
“Smollett’s next contention is that the trial court abused its discretion in allowing the entirety of an interview he had with Robin Roberts on the television show Good Morning America (GMA) to go back to the jury during deliberation where the jury only saw a portion of the interview at trial,” the opinion said. “The OSP responds that the GMA interview had been admitted into evidence and published to the jury as substantive evidence during the OSP’s case-in-chief and therefore the court properly allowed the entirety of the interview into jury deliberation.”
The appellate court said that Smollett’s failure to “cite the pages in the record where the GMA interview was allegedly used for impeachment purposes” rendered the argument forfeit. Leaving that aside, the appellate court found nonetheless that the trial court “properly allowed the video of the GMA interview to be taken to the jury room.”
During the Good Morning America interview, Robin Roberts asked Smollett for his response to those who did not believe his story that two people attacked him in Chicago while declaring “this is MAGA country,” shouting racist and homophobic slurs, and putting a noose around his neck.
“I’m pissed off,” Smollett said.
“It’s like, you know, at first, it was a thing of, like, ‘Listen, if I tell the truth then that’s it, ’cause it’s the truth.’ Then it became a thing of like, ‘Oh, how can you doubt that?’ Like, how do you – how do you not believe that? It’s the truth,” he elaborated. “And then it became a thing of like, ‘Oh, it’s not necessarily that you don’t believe that this is the truth, you don’t even want to see the truth.”
Smollett went on to be convicted in December 2021 of staging the hoax, with the help of fellow actors Abel Osundairo and Ola Osundairo, two brothers who said Smollett cut them a $3,500 check in connection with the scheme.
The defendant said they were “liars.”
When Smollett was sentenced in March 2022, Judge James Linn remarked that Smollett’s “performance on the witness stand” could “only be described as pure perjury.”
Actor Jussie Smollett speaks to Judge James Linn after his sentence was read on Thursday, March 10, 2022 at the Leighton Criminal Court Building. (Image via Brian Cassella/Pool/Chicago Tribune.)
The judge also described Smollett as a “charlatan pretending to be a victim of a hate crime.”
Smollett’s legal team has reportedly vowed to appeal up to the state high court.
Read the First District Appellate Court decision here.
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