CHICAGO (AP) — Jussie Smollett staged a racist and homophobic assault and told police he was the victim after the television studio where he worked didn’t take hate mail he had received seriously, a prosecutor said during opening statements in the ex-“Empire” actor’s trial Monday.
Smollett has maintained he was attacked in downtown Chicago in January 2019 by supporters of then-President Donald Trump, a report that ignited political and ideological divisions around the country. But special prosecutor Dan Webb said the actor recruited two brothers to help him carry out the fake attack, then reported it to Chicago police, who classified it as a hate crime and spent 3,000 staff hours on the investigation.
“When he reported the fake hate crime that was a real crime,” said Webb, who was named as special prosecutor after Cook County State’s Attorney Kim Foxx’s office dropped the original charges filed against Smollett. A new indictment was returned in 2020.
Smollett, who arrived at the courthouse in Chicago Monday with his mother and other family members, is charged with felony disorderly conduct. The class 4 felony carries a prison sentence of up to three years, but experts have said it is likely that if Smollett is convicted he would be placed on probation and perhaps ordered to perform community service.
Webb told jurors that the two brothers — who worked on the “Empire” set with Smollett — say the actor paid them $3,500 to pose as his attackers after he was unhappy about how the studio handled the letter he received. That letter included a drawing of a stick figure hanging from a tree and “MAGA,” a reference to Trump’s Make America Great Again campaign slogan, Webb said.
He said Smollett then concocted the fake attack and had a “dress rehearsal” with the two brothers, including telling them to shout racial and homophobic slurs and “MAGA.” Smollett also told the brothers to buy ski masks, red hats and a rope, Webb told jurors.
“He told them to use a rope to make it look like a hate crime,” Webb said. Smollett “developed a secret plan that would make it appear that there was actually a hate crime that actually occurred against him by supporters of Donald Trump,” special prosecutor Dan Webb told jurors.
The 12 jurors plus three alternate jurors were sworn in late Monday for a trial that Judge James Linn said he expects to take about one week. Cameras are not allowed inside the courtroom and the proceedings are not being livestreamed, unlike in other recent high-profile trials.
Whether Smollett, who is Black and gay, will testify remains an open question. But the siblings, Abimbola and Olabinjo Osundairo, will take the witness stand and are expected to repeat what they have told police officers and prosecutors: that they carried out the attack at Smollett’s behest.
Jurors also may see surveillance video from more than four dozen cameras that police reviewed to trace the brothers’ movements before and after the reported attack, as well as a video showing the brothers purchasing a red hat, ski masks and gloves from a beauty supply shop hours earlier.
Smollett’s attorneys have not spelled out how they will confront that evidence. Lead attorney Nenye Uche declined to comment ahead of this week’s proceedings. But there are clues as to how they might during the trial.
Buried in nearly 500 pages of Chicago Police Department reports is a statement from an area resident who says she saw a white man with “reddish brown hair” who appeared to be waiting for someone that night. She told a detective that when the man turned away from her, she “could see hanging out from underneath his jacket what appeared to be a rope.”
Her comments could back up Smollett’s contention that his attackers draped a makeshift noose around his neck. Further, if she testified that the man was white, it would support Smollett’s statements — widely ridiculed because the brothers, who come from Nigeria, are Black — that he saw pale or white skin around the eyes of one of his masked attackers.
Given there is so much evidence, including the brothers’ own statements, that they participated in the attack, it is unlikely that Smollett’s attorneys will try to prove they did not take part. That could lead the defense to contend that Smollett was the victim of a very real attack at the hands of the brothers, perhaps with the help of others, who now are only implicating the actor so they won’t be charged.
The $3,500 check could be key, although Smollett says he wrote it to pay one of the brothers to work as his personal trainer.
“I would assume the defense is going to zero in on that,” said Joe Lopez, a prominent defense attorney not involved with the case.
What they will almost certainly do is attack the brothers’ credibility, reminding jurors that they are not facing the same charges as Smollett, despite admitting they took part in the staged attack.
“Everything Smollett is responsible for, they are responsible for,” said David Erickson, a former state appellate judge who teaches at Chicago Kent College of Law and is not involved in the case.
Finally, Smollett’s career could take center stage. Prosecutors could make the same point that then-Police Superintendent Eddie Johnson made when he announced Smollett’s arrest in 2019: that Smollett thought the attack would win him more fame and a pay raise.
"Mr. Smollett is the one that orchestrated this crime," police say. "He has to be accountable for what he did."
Smollett maintains his innocence. pic.twitter.com/TuRvyKbBqp
— Washington Examiner (@dcexaminer) February 21, 2019
But Lopez said the defense attorneys might ask the jury the same question he asked himself.
“How would that help him with anything?” he asked. “He’s already a star.”