An appellate court in Illinois on Friday rejected Jussie Smollett’s challenge of his conviction on charges of filing a false police report about a racist and homophobic attack in 2019.
Mr. Smollett was sentenced to five months in jail last year but only served six days of the term before he was released on appeal.
Lawyers for the actor — who had starred in the music-industry drama “Empire” when he first reported the he had been the victim of a hate crime — argued that Mr. Smollett had been unjustly punished for the same crime twice when a special prosecutor revived a case against him that had been dismissed earlier by state prosecutors. They asserted that the prosecution had violated the “double jeopardy” clause of the Constitution’s Fifth Amendment, asking the court to dismiss the case against him altogether.
The appellate court was not persuaded. Justice David R. Navarro wrote in the opinion that “the State was not barred from reprosecuting Smollett.”
“No jury had been impaneled, no witness had been sworn in, no evidence had been introduced, and Smollett had not pled guilty,” Justice Navarro wrote. “Because none of these actions occurred, jeopardy did not attach to Smollett’s first criminal prosecution.”
A lawyer for Mr. Smollett, Nenye Uche, did not immediately respond to requests for comment on whether he planned to appeal the case further.
The special prosecutor in charge of the case, Dan K. Webb, said on Friday that the appeal was a “resounding victory” for the prosecution. He said that based on Illinois law, Mr. Smollett would not be required to report to jail immediately: His lawyers will have the chance to appeal further, to the Illinois Supreme Court, but if that court does not take up the case, Mr. Smollett will not have any more avenues.
Since he reported being attacked — Mr. Smollett claimed two men had mildly injured him while yelling racist and homophobic slurs, with one of them yelling, “This is MAGA country” — the Smollett case has veered from outrage over what appeared to be a bigoted attack against a Black and gay actor to uproar after the court found that Mr. Smollett had orchestrated the attack himself. His 2021 conviction on five counts of disorderly conduct did not end the legal battle, as he continued to maintained his innocence.
The case was a political tinderbox in Chicago, where the state’s attorney’s office initially prosecuted Mr. Smollett, then dropped the charges against him that same month. Kim Foxx, the Cook County state’s attorney, had separated herself from the investigation and appointed a deputy, Joseph Magats, to oversee the case.
That appointment was criticized by a judge, who ordered the appointment of a special prosecutor to take over the case. The special prosecutor, Mr. Webb, opened a new case against Mr. Smollett a year later. At trial, the prosecution’s star witnesses were two brothers who testified that Mr. Smollett had asked them to carry out the attack and instructed them in detail on how to carry it out.
Mr. Uche argued in his appeal of the case that the prosecution never should have been reopened because at the time that state prosecutors dropped the initial charges, Mr. Smollett forfeited a $10,000 bond and performed community service — effectively a “punishment” for the crime that could not then receive another punishment.
“By reindicting Mr. Smollett, the State not only reneged on its agreement,” Mr. Uche wrote, “but it resurrected and nullified a dead, buried, and already enforced agreement.”
But the justices found that Mr. Smollett’s agreement with prosecutors was not formal enough to count as a final disposition.
“Given the absence of a nonprosecution agreement,” Justice Navarro wrote, “reprosecuting Smollett was not fundamentally unfair.”
Mr. Smollett’s lawyers raised a litany of other objections to the prosecution and how the trial had been conducted, arguing that the trial court judge had been hostile to the defense (the appeals court found he had merely been impatient, not biased) and that there was not proper public access to the trial because of pandemic restrictions (the appeals court found that access restrictions during jury selection were reasonable).
The court also rejected complaints against the severity of Mr. Smollett’s sentence, which, in addition to jail time, includes a $25,000 fine and more than $120,000 that the Chicago Police Department said it had spent on overtime costs for its investigation.
One justice on the panel of three dissented, finding that prosecutors’ dismissal of the initial case was formal enough to bar further prosecution.
“Smollett did not enter into a plea agreement with the State, but a bilateral agreement took place, which bound the State, nonetheless,” Justice Freddrenna M. Lyle wrote.
During Mr. Smollett’s sentencing hearing last year, the judge overseeing the trial, James B. Linn, excoriated the defendant and his motives from the bench, saying that he had clearly planned the hoax because he “craved the attention.”
Mr. Smollett, 41, who was dropped from “Empire” after the police accused him of staging the attack, has been in limbo for more than a year as the appeal inched its way through the court system.