Jussie Smollett's hoax attack trial begins this week, nearly three years after he told police he was beaten in the street by two MAGA hat wearing, light-skinned men who turned out to be a pair of Nigerian brothers who claim the actor paid them to stage the beating.
Smollett, 39, was charged with six counts of felony disorderly conduct in February 2020, a year after the incident. Each count carries a maximum prison sentence of three years, but it's likely he would be sentenced to probation if found guilty.
Smollett was accused of orchestrating the attack by hiring brothers Abimbola and Olabinjo Osundairo to punch him and put a noose around his neck, in what police said was an effort to raise his celebrity profile.
He was charged first with 16 counts of lying to police, but the charges were dropped by Cook County State's Attorney Kim Foxx, who had connections to the actor's family.
He was re-charged in 2020 by a special prosecutor, and that is the case that is now going to trial.
Smollett, who is black and openly gay, has always maintained his innocence and says he was the victim of a racist and homophobic attack. He doesn't deny that it was the brothers who were involved, but he says he did not lie to police in his version of events.
Jussie Smollett arrives in court in Chicago on Monday morning for the first day of his trial. He was flanked by his female relatives and a bodyguard
Smollett was joined by his sister Jurnee and his mother, Janet, for jury selection on Monday morning
Jussie Smollett, center, arrives at the Leighton Criminal Court Building for the beginning of his trial on new disorderly conduct charges on November 29 2021 in Chicago, Illinois
Abel and Ola Osundairo are the brothers who say Smollett paid them to attack him. They are expected to take the stand as witnesses at the trial, and to repeat their previous claim that he paid them $3500 to stage the attack
The brothers are expected to testify that Smollett paid them $3,500 to carry out the attack and it is also possible that Smollett may take the stand.
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 and the lead attorney, Nenye Uche, declined to comment.
But there are clues as to how they might during the trial, which starts with jury selection Monday in a Chicago courtroom. It is expected to last a week.
Buried in nearly 500 pages of Chicago Police Department reports is a statement from a woman who lived in the area 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.
In February 2019, before he was arrested, Smollett appeared on Good Morning America to talk about the attack.
By then, police had released surveillance footage of two masked men who they said were the attackers.
Smollett identified them as the attackers on GMA.
The police then confirmed that the men in the footage were the Osundairo brothers, who Smollett had met before on the set of Empire, and who had been in his Chicago luxury apartment building.
He was torn to shreds for claiming that he was attacked by light-skinned men when the brothers, who are black, were identified.
To try to explain it, one of Smollett's attorney's - Tina Glandian - suggested that the pair might have been wearing make-up.
To address skepticism on the jury, Glandian could ask the brothers about a video she talked about on the program that she said shows one of them in whiteface reciting a monologue by the Joker character from a movie.
Given there is so much evidence, including the brothers' own statements, that they participated in the attack, it is not likely that Smollett's attorneys will try to prove they did not take part. That could perhaps 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 prosecutors won't charge them, too.
They $3,500 check could be key. While the brothers say that was their fee to carry out the fake attack, Smollett has offered a different and much more innocent explanation: that he wrote the check to pay one of them 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.
'If they texted messages regarding training sessions, checks he (Smollett) wrote them for training, photographs, the defense would use all of that.'
What they will almost certainly do is attack the brothers' credibility - an effort that will certainly include a reminder to the jury that the brothers are not facing the same criminal charges as Smollett, despite admitting to taking 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 who is not involved in the case.
'They participated and they walk away? What the hell is that?'
Erickson said he expects prosecutors to confront that issue before Smollett's attorneys do, as they won't want to appear to be trying to hide something.
Finally, Smollett's career could take center stage. On one side, 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 gain him more fame and get him a raise on a hit TV show.
But Lopez said the defense attorneys might ask the jury the same question he has asked himself.
'How would that help him with anything?' he asked.
'He's already a star.'
Smollett - whose career has since faded - will this week return to the glare of the media spotlight, but this time as he passes the forest of news cameras as he makes his way to and from court.
The producers of "Empire," on which he starred for four years, renewed his contract for the sixth and final season in 2019, but he never appeared in an episode. Nor has he released any music or given significant musical performances.
He has, however, directed an independent film, funded by his own production company, that is premiering at the American Black Film Festival this month.
The movie, B-Boy Blues is an adaptation of a 1994 novel, the first in a series, about the lives of gay Black men in New York.
According to their lawyer, the brothers will also describe how Smollett drove them to the spot where the incident was to play out for a 'dress rehearsal.'
'He was telling them "Here´s a camera, there´s a camera and here´s where you are going to run away," said their lawyer, Gloria Rodriguez.
After being charged in February 2019, Smollett went to the set of Empire to promise to his co-workers he was innocent.
'I’m sorry I’ve put you all through this and not answered any calls. I wanted to say I’m sorry and, you know me, I would never do this to any of you, you are my family. I swear to God, I did not do this,' he said.
His legal team then issued a statement saying: 'Today we witnessed an organized law enforcement spectacle that has no place in the American legal system.
'The presumption of innocence, a bedrock in the search for justice, was trampled upon at the expense of Mr. Smollett and notably, on the eve of a Mayoral election.
'Mr. Smollett is a young man of impeccable character and integrity who fiercely and solemnly maintains his innocence and feels betrayed by a system that apparently wants to skip due process and proceed directly to sentencing.'
Chicago Police Chief Eddie T. Johnson abhorred him as a 'troubled young man' who has 'taken advantage of the pain and anger of racism to further his career' by allegedly lying that he was attacked by racist and homophobic assailants on January 29.
When police learned that Smollett's motive was to get more money, it 'p****d everybody off', Superintendent Johnson said, adding that Smollett's repeated 'lies' were 'shameful' and 'despicable'.
'I come to you today not only as the Superintendent of Chicago Police Department but as a black man who has spent his entire life living in the city of Chicago.
'I know the racial divide. I know how hard it has been for our city and our nation to come together.
'Empire actor Jussie Smollett took advantage of the pain and anger of racism to promote his career.
'I'm left hanging my head and asking why? Why would anyone, especially an African American man, use the symbolism of a noose to make false accusations?
'How could someone look at the hatred and suffering associated with that symbol and see it as an opportunity to manipulate his own public profile?' Superintendent Johnson said, adding it was a 'slap in the face ' to 'everyone' in Chicago.
'I love the city of Chicago, warts and all, but this publicity stunt was a scar that Chicago didn't earn and certainly didn't deserve.
'The accusations within this phony attack received national attention for weeks...Celebrities, news commentators and even presidential candidates weighed in on something that was choreographed by an actor,' he went on.
He added that he was 'angry and offended' and said it was a travesty that other crimes do not garner as much attention.
'I just wish that the families of the victims of gun violence in this city got as much attention. That is who really deserves this amount of attention.'
He was emphatic, later, about the fact that no other investigations suffered as a result of Smollett's claims, but said: 'Bogus police reports cause real harm.
'They do harm to ever legitimate victim who is in need of support by police.'
Johnson finished his remarks by saying: 'I’ll continue to pray for this troubled young man who resorted to both drastic and illegal tactics to gain attention.
'I’ll also continue to pray for our city asking that we can move forward from this and begin to heal.'
Police examined footage from 55 surveillance cameras, obtained more than 50 search warrants and conducted more than 100 interviews.
Smollett pictured above muzzed wearing the noose he says the attackers planted round his neck
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