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.)
Actor Jussie Smollett on Wednesday filed court documents seeking a retrial in his conviction for orchestrating a fake hate crime attack.
In an argument issued to the Illinois First District Appellate Court, the defense argued that trial judge James Linn was prejudiced against them, sandbagged their work during cross-examination, and let prosecutors strike a disproportionate amount of potential Black jurors and a gay juror.
The defense accused Linn of going overboard at sentencing and taking “on a personal retributive tone” “based on speculative information” that can’t be considered under case law.
Smollett, who is Black and gay, claimed he was attacked in early 2019 in Chicago by attackers who put a noose on him, poured bleach on him, and yelled, “This is MAGA country.”
But police said he concocted the incident with the help of brothers Abel Osundairo and Ola Osundairo, who are Black. The motive was that the actor was disappointed with his pay on the show “Empire” as a publicity stunt.
Smollett initially resolved the case with Cook County prosecutors in 2019, who dropped charges in return for community service.
However, Judge Michael Toomin appointed a special prosecutor to handle the case, citing “unprecedented irregularities” such as State’s Attorney Kim Foxx being involved in the investigation even when she said she recused herself.
Smollett was convicted of disorderly conduct charges. He was also sentenced to two years of probation. An Illinois appeals court ordered his release from custody shortly after sentencing because his appeal would take longer than his 150-day jail sentence.
The defense argued that Toomin was biased against Smollett and inappropriately denied a defense motion for a new judge instead of him.
“From the very start of the circuit court’s order granting the appointment of a special prosecutor, Judge Toomin explicitly, unequivocally, and improperly set forth an opinion that Mr. Smollett was, in fact, guilty of charges which a) Mr. Smollett specifically pled not guilty to, and b) which, at the time of the appointment, had been duly dismissed,” the filing stated.
The defense said that Linn made a mistake by determining the Chicago Police Department could get restitution for overtime investigating the attack.
“More importantly, Illinois courts have repeatedly held that a police department or other government agency is not considered a ‘victim’ within the meaning of the restitution statute,” documents stated.
Also, the prosecution allegedly failed to substantiate the hours worked.
They asserted the relevant overtime should have occurred when police were looking for Smollett’s attackers before he was charged.
Regarding Linn, the defense argued he made inappropriate commentary, stymying the defense’s attempts to show detectives both rushed to judgment and failed to properly investigate Smollett’s claims he was the victim of an actual, homophobic attack.
Read the filing:
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