Jussie Smollett’s Houdini Trick

Convicted hate crime hoaxer Jussie Smollett walked out of jail after serving only six days of a 150-day sentence. The black gay actor who claimed he was assaulted by two whites wearing MAGA hats in Chicago in January 2019, was tried last December for lying to police and found guilty of five of six counts of disorderly conduct.

On March 10, Judge James Linn ordered Mr. Smollett to pay $120,106 in restitution to the City of Chicago, plus a $25,000 fine, and he sentenced Mr. Smollett to five months in Cook County jail. Just before being taken into custody, Mr. Smollett shouted that he was not suicidal, and said, “If anything happens to me when I go in there [jail], I did not do it to myself.”

His lawyers began working to free him immediately. They requested a stay of execution of Mr. Smollett’s incarceration at the sentencing hearing, which the judge denied. On Monday, March 14, the defense demanded an emergency suspension of the jail sentence citing “vicious threats,” including an anonymous phone call, which raised concerns about Mr. Smollett’s safety in the jail.

Mr. Smollett’s older brother, Jocqui Smollett, said he got the call Friday morning, as Jussie was taken into custody. The caller said:

Hi, this is n—- lives matter. (laughing) I hope what they do to that guy in jail — Here’s what they’re gonna do, right? They’re gonna take a broom handle and take that little (expletive), shove it in there, and he’s gonna go (shrieking/laughing).

The broom handle may be a reference to a 1997 police brutality case in which a policeman named Justin Volpe sodomized Haitian security guard Abner Louima with a broomstick in the bathroom of the 70th precinct in Brooklyn. Mr. Volpe is serving 30 years for the attack, and is scheduled for release in 2025.

Joqui Smollett talked about Jussie’s incarceration in a March 15 interview with NBC:

Jussie has not had anything bad to say about it. He said the people inside, the law enforcement and the prison guards inside have been nice to him. They’ve been accommodative. They’ve been professional. He hasn’t had anything bad to say about them at all. But the reality is that prison is not a safe place. . . .

Many of my family members have received hate mail and hate speech directed toward us, but this [phone call] was a very morbid-sounding message. Unadulterated evil. It was pure evil. The tone of it and the intention behind it. And it was concerning because he is incarcerated right now. And as much as we hate to admit it, jails in America are really not the safest places in America. They’re very unsafe places.

The older Smollett added that his brother had been moved from a jail cell in a psychiatric ward with a bed for restraining mental patients to a cell with a standard bed. Cook County sheriff’s officials confirmed the change of cells, but said Mr. Smollett was moved because medical personnel needed the first cell for someone else. They added: “Mr. Smollett was never restrained to a bed or anything else in the cell. The bed was never equipped with restraints.”

In the filing calling for Mr. Smollett’s immediate release, the defense said the threatening phone call “reflects the hatred and wish for physical harm toward Smollett which he may experience during incarceration.” If threats are a problem, will there be none on the outside?

Mr. Smollett’s lawyers also argued that protective custody is essentially “solitary confinement” that could damage his mental health, and they claimed he has a “compromised immune system,” so potential exposure to Covid-19 in jail raises a “serious health risk.” Sean Wieber, who represented the special prosecutor’s office in appellate court, denied the defense claims. He said Mr. Smollett was not being held in solitary, which the Cook County jail discontinued since 2016, and that the jail had taken care to protect his health.

The defense argument that seems to have convinced the appellate judges was that Mr. Smollett would have completed his five-month sentence by the time the appeals process was finished. In a two-to-one decision, the justices ordered that Mr. Smollett be released, pending the appeal of his conviction, on the condition that he post a personal recognizance bond of $150,000. This means he doesn’t have to put down money, but agrees to come to court as required. He may have to finish his jail time if he loses his appeal.

At about 9 pm Eastern time on Wednesday, March 16, Mr. Smollett walked out of jail, surrounded by five security guards. He got into a car with no comment to the press.

His lawyer, a black man from Nigeria named Nenye Uche, told the press the Smollett family was “very, very happy” and the defense was “elated.” He added:

When this case was initially reindicted, when this case was prosecuted, when this case was sentenced, at each of those steps, I wondered to myself whether Chicago had seceded from the union, because in this country, you cannot punish a person twice. And while everyone was focused on the sensationalism surrounding this case, people were not focused on the constitutionality of the prosecution. And we have been trying to tell everyone that it is unconstitutional to charge someone twice.

He told media that Jussie Smollett paid a $10,000 fine and did community service before the special prosecutor was assigned:

Now, there’s no time machine to go back in time and undo those things. . . . We’ve been complaining about the disparate treatment of African Americans in the judicial system, and regardless of what you think about this case . . . . Should black men be walked into jail for a class four felony? Shame on you if you think they should. That’s a disgrace! It’s wrong! . . . People are still trying to lock black men up, and it’s a disgrace.

The judge’s sentencing – couldn’t disagree more with it. The judge spent a great deal of time chastising, berating my client. And I’ve never seen that and I thought it was unprofessional. That’s my personal opinion. . . . And we look forward, now that this case has gone to the appellate court, to actually, finally having an intellectual conversation about the constitutionality of this case.

Another one of Smollett’s lawyers, a black man named Shay Allen, claimed that Judge Linn’s sentence was “draconian” and “excessive.” He said, “I hope everyone realizes that the persecution that was going on in that courthouse was absurd. . . . You should never ever be charged with something that you’ve already been prosecuted for.”

Mr. Uche reported that Jussie Smollett was “very strong” in jail, but he also said, “Even a day spent in jail is scary. He hasn’t eaten. He hasn’t eaten in six days. Maybe he knew something spiritually that we didn’t know.”

Mr. Uche accused the media of tabloid journalism and urged them to write that someone had been charged twice for the same crime. “And I’m gonna say, is he getting all this attention because he accused two white men?” he asked. “Is that what’s really going on? Because multiple false reports are made against black men all over the country. Nobody cares.”

Was there double jeopardy? Neama Ramani, a former federal prosecutor said on Closing Arguments with Vinnie Politan that double jeopardy could be “a very good legal argument.” He added that “Kim Foxx [the original prosecutor] not only dropped the ball here, she sabotaged special prosecutor Dan Webb’s case. . . . [but if] the appellate court based its decision on double jeopardy. . . I think Smollett has a good chance of getting this conviction overturned.”

He added: “We do have prosecutors acting as defense attorneys . . . . We have one in Chicago and we have one in my hometown of Los Angeles [George Gascon]. So, with prosecutors like this, who needs defense attorneys?”

Mr. Smollett’s lawyers will now argue the appeal. In the meantime, he is a free man.