After closing arguments on Wednesday, the panel began considering whether the actor had staged a hate crime against himself, as the two men who attacked him have testified.
By Julia Jacobs and Mark Guarino
Dec. 8, 2021
The jury tasked with deciding whether Jussie Smollett falsely told the police that he had been the victim of a racist and homophobic assault began deliberations on Wednesday and started to grapple with the two differing narratives of what happened on a freezing Chicago night in 2019.
Prosecutors have accused Mr. Smollett of orchestrating the attack himself by instructing two brothers, Abimbola Osundairo and Olabinjo Osundairo, to punch him just hard enough to create bruises, pour bleach on his clothing and place a rope around his neck like a noose while yelling racist and homophobic slurs.
But the defense, which relied on more than seven hours of testimony by Mr. Smollett himself, has argued he was the victim of a real attack, perpetrated by the brothers, who then lied to investigators to avoid being prosecuted themselves.
After six days of testimony, and a full day of closing arguments by both sides, the 12-person jury began considering the disorderly conduct charges late on Wednesday afternoon. But Judge James B. Linn agreed to suspend deliberations just after 5 p.m. because one of the jurors had reported to the court that he had made a prior commitment to attend a concert in which his child was participating.
Earlier in the trial, the special prosecutor in the case, Daniel K. Webb, told the jury that Mr. Smollett had staged the attack because he was upset that the producers behind the television show on which he starred, “Empire,” had had a muted response to a death threat the actor had received in the mail.
Mr. Webb argued on Wednesday that Mr. Smollett’s own account of what had occurred did not make sense. If the attack had not been planned, he said, the Osundairo brothers would not have known when and where Mr. Smollett would pass in those early morning hours when he was assaulted as he carried home a tuna sandwich from Subway.
Mr. Smollett, he pointed out, initially reported that one of his attackers had been white even though Abimbola Osundairo, whom he knows well, is Black and is someone whose voice he has heard many times. Similarly, he cited Mr. Smollett’s refusal to turn over his phone and other potential evidence to the police as indications that the actor sought to impede the investigation.
“Mr. Smollett didn’t want the crime solved,” Mr. Webb said in his closing. “He wanted to report it as a hate crime; he wanted media exposure; but he didn’t want the brothers apprehended.”
Mr. Webb also said evidence indicated that Mr. Smollett “tampered” with the rope on his neck to make it look like it was fitted more tightly than when Olabinjo Osundairo put it over Mr. Smollett’s head. The prosecutor showed the jury an image of surveillance footage taken shortly after the attack and compared it with an image of Mr. Smollett when the police came, with the rope appearing tighter in the second image.
On Monday, Mr. Smollett had denied tampering with the rope. He testified that when he returned to his apartment after the attack, he had taken the rope off, but his creative director, Frank Gatson, told him to put it back on so the police could see what had happened.
“I was trying not to mess up the evidence,” Mr. Smollett said.
In the defense’s closing argument, Mr. Smollett’s lead lawyer, Nenye Uche, said that prosecutors had not established a clear motive, and that, in fact, his client had every reason not to have faked an attack.
“His lack of motive is pretty obvious: Media attention, he doesn’t like it,” Mr. Uche said. What is more, he said, Mr. Smollett had a music video shoot coming up and could not afford his face getting bruised.
Countering the prosecution’s main points, Mr. Uche said the Osundairo brothers had actually been loitering at the attack site for a while before Mr. Smollett walked by. He said a witness had seen a white man in the vicinity of the attack, suggesting the brothers could have had a white accomplice, which would explain Mr. Smollett’s identification. And he argued that there were good reasons Mr. Smollett had balked at turning over some of the evidence sought by investigators. The defense, for example, has said Mr. Smollett did not want to turn his cellphone over to investigators because he didn’t trust that the information on it would remain private.
Mr. Smollett’s team argued that the brothers attacked Mr. Smollett to convince him that he needed personal security — and should hire them.
The defense also sought to defuse a prosecution argument that a videotape showed Mr. Smollett and the brothers driving around his neighborhood two days before the attack, in what the brothers described as a dry run.
Mr. Smollett had testified that he and Abimbola Osundairo had simply been smoking marijuana while Mr. Smollett drove the brothers, aimlessly, around Chicago.
“He’s a pothead, I’m sorry!” Mr. Uche said. “The pressures of being an entertainer.”
If convicted of felony disorderly conduct in connection with a false police report, Mr. Smollett faces a possible sentence of up to three years in prison.