Attorneys for Empire cast memberJussie Smollett appeared at an Illinois appellate court Sept. 12 to begin arguments to have the actor’s conviction thrown out.
Smollett was convicted on charges of faking a racist, homophobic attack in 2019 and lying about it to Chicago police. Initially, no charges were filed against the actor, but lawyers say charges were brought on by outside factors.
“Public outrage against the defendant cannot overrule the rule of law,” attorney Nenye Uche stated to a panel of three judges.
In a 76-word appeal submitted to the panel, Smollett’s lawyers state the 2021 trial violated their client’s Fifth Amendment right against double jeopardy. Before the trial took place, Smollett had already performed community service and forfeited a $10,000 bond. That was part of the 2019 deal he had with the Cook County State’s Attorney’s Office to drop the initial charges. By having the second trial, according to the appeal, he was punished twice for the same crime.
The attorneys believe the office of prosecutor Kim Foxx used proper discretion when they dropped the original charges four years ago.
“If Mr. Smollett’s convictions are allowed to stand, this case will set a dangerous precedent by giving prosecutors a second bite at the apple any time there is dissatisfaction with another prosecutor’s exercise of discretion,” the appeal read.
Sean Wieber, who represents the special prosecutor, told the panel the way Smollet’s case was handled left open the possibility of the actor being recharged without violating protections against double jeopardy.
It was argued that if a defendant hasn’t been tried and has never pleaded guilty, it’s typically not double jeopardy if the defendant is indicted a second time on the same charges.
A ruling is expected to take several weeks.
In 2022, Smollet was sentenced to 30 months of felony probation with 150 days served in Cook County Jail. He was also ordered to pay $120,106 in restitution to the City of Chicago and a $25,000 fine. If the judge rules in favor of the state, Smollet will have to finish the sentence, minus the six days he spent in jail before he was released pending the result of this appeal.
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