Illinois Supreme Court reverses actor Jussie Smollett’s conviction

SPRINGFIELD, Ill. — The Illinois Supreme Court has reversed the conviction of actor Jussie Smollett.

The former “Empire” actor took his case to the Illinois Supreme Court in September in a last-ditch effort to have his 2021 conviction overturned.

The court cited Smollett’s second prosecution after his charges were initially dropped as the main reason why his conviction was overturned.

“Today we resolve a question about the State’s responsibility to honor the agreements it makes with defendants. Specifically, we address whether a dismissal of a case by nolle prosequi allows the State to bring a second prosecution when the dismissal was entered as part of an agreement with the defendant and the defendant has performed his part of the bargain. We hold that a second prosecution under these circumstances is a due process violation, and we therefore reverse defendant’s conviction,” the Illinois Supreme Court wrote in its ruling.

Smollett was convicted of falsely reporting a 2019 hate crime against him in 2021. Smollett, who is Black and gay, alleged his attackers shouted racist and homophobic slurs at him before putting a noose around his neck on a freezing night in Streeterville.

He was found guilty of five counts of disorderly conduct for setting up the attack. Testimony at his trial indicated he paid two brothers, whom he knew from the set of the TV show, $3,500 to carry out the “attack.”

But prior to his conviction, Cook County State’s Attorney Kim Foxx initially dropped his 16 charges in Apr. 2019 — which is the basis of Thursday’s Supreme Court ruling.

Foxx, who recused herself from the case after she communicated with a Smollett relative during the probe, reiterated that she welcomed of an independent investigation into the way she and her office handled the case.

That came in Aug. of 2019, when Cook County Judge Michael Toomin’s appointed former U.S. attorney Dan Webb as special prosecutor.

Previous: Jussie Smollett found guilty on 5 of 6 counts of disorderly conduct

Webb led the prosecution efforts the second time around and a grand jury returned a six-count indictment against the actor on Feb. 11, 2020. Smollett was found guilty of five of six disorderly conduct charges on Dec. 9, 2021.

Smollett was sentenced to 150 days in jail, 30 months of probation and ordered to pay more than $130,000 in restitution. He had served six days of the sentence.

According to the ruling’s conclusion, the Illinois Supreme Court cited Bill Cosby’s case as one that also generated “significant public interest.”

The court went on to allude to Smollett’s original charges being dropped and said while “many people” were dissatisfied with that — it “would be more unjust than the resolution of any one criminal case would be a holding from this court that the State was not bound to honor agreements upon which people detrimentally relied.”

In addition to the aforementioned public interest, Cosby’s case was cited from the Supreme Court of Pennsylvania regarding enforcing a prosecutorial promise not to prosecute.

“It cannot be gainsaid that society holds a strong interest in the prosecution of crimes. It is also true that no such interest, however important, ever can eclipse society’s interest in ensuring that the constitutional rights of the people are vindicated. Society’s interest in prosecution does not displace the remedy due to constitutionally aggrieved persons,” the court wrote regarding Cosby.

The Appellate Court of Illinois denied Smollett’s request to toss his conviction in December of last year.

The Illinois Supreme Court noted that Chief Justice Theis and Justice Cunningham did not take part in the consideration or decision of Smollett’s case.

Special prosecutor Dan Webb sent the following lengthy statement, saying he disagreed with the decision.

“We are disappointed in the Illinois Supreme Court’s decision today to overturn Jussie Smollett’s convictions and sentence, including the award of over $120,000 in restitution to the City of Chicago for its overtime expenses in investigating Mr. Smollett’s fake hate crime. We respectfully disagree with the Court’s factual and legal reasoning which upends long-standing Illinois precedent. Indeed, the Special Prosecutor’s brief to the Illinois Supreme Court was replete with Illinois case law that would not preclude a second, new prosecution following a dismissal without prejudice via nolle prosequi. Even the Illinois Supreme Court agreed in its opinion that its holding today was not explicit in earlier Illinois decisions.

Make no mistake—today’s ruling has nothing to do with Mr. Smollett’s innocence.  The Illinois Supreme Court did not find any error with the overwhelming evidence presented at trial that Mr. Smollett orchestrated a fake hate crime and reported it to the Chicago Police Department as a real hate crime, or the jury’s unanimous verdict that Mr. Smollett was guilty of five counts of felony disorderly conduct.  In fact, Mr. Smollett did not even challenge the sufficiency of the evidence against him in his appeal to the Illinois Supreme Court.

My office spent nearly two years developing evidence and working closely with the Chicago Police Department to prepare that case for trial.  It is very important I point out that today’s decision is also not the result of any error or conduct by the Office of the Special Prosecutor, the trial court, or the Chicago Police Department.  In fact, the events that led to the Illinois Supreme Court to reverse Mr. Smollett’s conviction occurred 5 months before I was appointed as Special Prosecutor.

Rather, today’s decision is only possible because of the unprecedented resolution of Mr. Smollett’s initial case by the Cook County State’s Attorneys’ Office (CCSAO) in March 2019, which the Illinois Supreme Court determined barred Mr. Smollett from any further prosecution. The Illinois Supreme Court reached this decision notwithstanding the fact that the CCSAO dismissed the initial Smollett case via a nolle prosequi, which does not bar re-prosecution under Illinois law, and Mr. Smollett’s own lawyers told the public immediately following the dismissal of his initial case in March 2019 that there was “no deal” with the CCSAO.

As previously set forth in my 63-page, very detailed Special Prosecutor’s Public Summary Report, my office developed evidence of substantial abuses of discretion and operational failures by the CCSAO in prosecuting and resolving the initial 2019 Smollett case, and also found that State’s Attorney Kimberly Foxx and other CCSAO prosecutors made multiple false and/or misleading statements to the public. Those significant failures and false and/or misleading statements by State’s Attorney Foxx’s office led Cook County Judge Michael B. Toomin to appoint me as Special Prosecutor in order to restore the public’s faith in Illinois’ criminal justice system. In fact, there was a public clamor to have a well-respected trial lawyer and law firm agree to become a special prosecutor in order to help restore the public’s confidence in the Cook County judicial system. My law firm, Winston & Strawn LLP, accepted the appointment pro bono with no compensation to the firm in order to give back to the City of Chicago.

Our Winston & Strawn lawyers fulfilled this mandate by devoting over 5 years and more than 15,000 hours in examining the original Smollett investigation and bringing new charges, which yielded a unanimous jury conviction of Mr. Smollett in 2021 on five felony counts of wrongful misconduct.  Nothing about today’s decision upsets the work undertaken by the Special Prosecutor’s office, or the overwhelming evidence underlying the jury’s verdict that Mr. Smollett faked a hate crime and reported it as a real hate crime to the Chicago Police Department.

Despite today’s ruling, the City of Chicago remains able to pursue its pending civil lawsuit against Mr. Smollett in order to recoup the over $120,000 in overtime expenses the Chicago Police Department incurred for investigating Mr. Smollett’s fake hate crime.

I want to provide a special thanks to Deputy Special Prosecutors Sean G. Wieber, Samuel Mendenhall, and the entire team at Winston & Strawn who assisted in this matter, for all of their dedication and efforts over the years.  Today’s ruling does not change how deeply proud I am of the work my Special Prosecutor’s office accomplished; nor does it undermine the jury’s verdict, and most importantly, it does not clear Jussie Smollett’s name—he is not innocent.”

Nenye Uche, one of Smollett’s attorneys, issued the following statement.

“This was not a prosecution based on facts, rather it was a vindictive persecution and such a proceeding has no place in our criminal justice system.

Ultimately, we are pleased that the rule of law was the big winner today.

We are thankful to the Illinois Supreme Court for restoring order to Illinois’ criminal law jurisprudence.”

On Thursday afternoon, an attorney representing Jussie Smollett held a news conference to discuss the Illinois Supreme Court’s decision to reverse the actor’s conviction.

The full news conference can be viewed in the video player below.

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