CNN
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Former “Empire” actor Jussie Smollett is scheduled to be sentenced in a Chicago court Thursday after being convicted last year of falsely reporting to police that he was the victim of a hate crime – though his attorneys will first try to persuade a judge to set aside the guilty verdict.
Smollett, 39, was found guilty in December on five counts of felony disorderly conduct for making false reports about what he said was a hate crime against him in Chicago in January 2019.
At a hearing for Smollett’s sentencing Thursday afternoon, attorneys are first expected to argue before Judge James Linn over the actor’s request to toss the verdict or grant him a new trial.
Smollett’s attorney Mark Lewis had filed a dozen arguments for the actor’s request last month, including the defense’s contention that it was improperly prevented from asking questions of potential jurors during the jury selection process. At the time, Linn ruled only he would ask questions, and not the defense or prosecution.
If Linn denies Smollett’s request or defers a ruling, sentencing will proceed. Smollett’s defense attorneys also have said they intend to fight the verdict in appellate court.
Smollett, who is Black and gay, told Chicago police that on a frigid night in January 2019 two unknown men attacked him, yelled racist and homophobic slurs at him, poured bleach on him and wrapped a noose around his neck.
Chicago police investigated the case as a possible hate crime but soon determined the actor orchestrated the incident. They said he paid two brothers he knew from the Fox drama “Empire” to stage the incident for publicity.
The brothers, Abimbola and Olabinjo Osundairo, were among seven witnesses for the prosecution at the trial. They testified that Smollett directed them and paid them to stage the attack in an attempt to garner sympathetic media coverage.
They said that they fake punched him, poured bleach on him, put a noose around his neck and used racist and homophobic slurs – because he told them to.
Smollett testified in his own defense and said he paid the brothers only for training advice and nutritional tips. He cast doubt on their true motivations and said he had a sexual relationship with one of the brothers, which the brother denied.
In December, defense attorney Nenye Uche said he disagreed with the jury’s verdict and that the defense would appeal and win in appellate court.
“He (Smollett) is 100% confident that this will be reversed on appeal,” Uche said. “At the end of the day, we believe justice will prevail. We don’t believe it was done (in December) but we’re very confident that he will be cleared and he will be found to be innocent.”
A disorderly conduct charge for a false crime report is a class 4 felony in Illinois, each punishable by up to three years in prison and a $25,000 fine. Linn will have discretion in imposing a concurrent or consecutive sentence for each of the five counts.
Linn also could sentence Smollett to probation, conditional discharge, community service, restitution, or a combination. Conditional discharge would be a release with stipulations but without probational supervision.
Smollett has no prior felony convictions. Partly because of this, a jail term seems unlikely, a former Cook County prosecutor told CNN.
Another reason is that Linn did not revoke Smollett’s bond after his conviction, said the ex-prosecutor, Darren O’Brien.
“If the person is going into custody ultimately, usually they revoke the bond,” said O’Brien, who has written guides to sentencing in Illinois published by the state’s bar association. “That’s another indication that I doubt he’s going to jail.”
Special prosecutor Daniel Webb did not file a recommendation for prison time ahead of the hearing, but did emphasize in December after Smollett’s conviction that the actor was “not repentant at all” when he testified during the trial.
CNN legal analyst and criminal defense attorney Joey Jackson previously told CNN that the judge could give Smollett probation, but Smollett “exposed himself to jail time” when he testified in court.
“When you testify in a case, the judge now gets a sense of what you said,” Jackson said. “What Jussie Smollett said was resoundingly rejected by that jury. The jury did not buy what he was selling. That’s not lost upon a judge. You came into the courtroom and fabricated.”
Smollett was initially indicted in March 2019 on 16 counts of felony disorderly conduct. But Cook County State’s Attorney Kim Foxx’s office suddenly dropped all charges weeks later, saying he did community service, would not get his $10,000 bond back, was no danger to the community and had no prior felony.
But the decision set off debate over whether Smollett had received preferential treatment, leading a judge to appoint a special prosecutor, Webb, to look into it in August 2019.
That led to a second grand jury, which in February 2020 indicted Smollett on the charges he’d be convicted of.
Smollett’s character was written out of “Empire,” which ended in 2020, and though he has since directed and produced a film, he’s yet to appear in another TV or film acting role.
The city of Chicago filed a lawsuit against Smollett in April 2019 after the actor declined to pay the city $130,106.15 for the police investigation, court documents show. Smollett filed a countersuit in November 2020.
Chicago’s Department of Law noted in the city’s suit that over two dozen police officers and detectives spent weeks working on Smollett’s case in 2019, resulting in 1,836 overtime hours.
Following Smollett’s conviction in December, the city said it intended to continue pursuing its lawsuit.