Under questioning by Mr. Smollett’s defense team, two brothers who say they participated in a fake attack denied suggestions they had lied to avoid prosecution.
By Julia Jacobs and Mark Guarino
Dec. 2, 2021
Jussie Smollett’s lawyers suggested in court on Thursday that two brothers at the center of the case attacked the actor to scare him into hiring them as his personal security, and later, to avoid prosecution, falsely told the police that Mr. Smollett had planned it all as a hoax.
The brothers, Abimbola and Olabinjo Osundairo, have each testified that Mr. Smollett gave them detailed instructions on where and how to mildly attack him in January 2019.
“You attacked Jussie because you wanted to scare him into hiring you as security,” said a lawyer for Mr. Smollett, Shay Allen, “so you could go back to L.A. and get paid $5,000 a week, didn’t you?”
“No, sir,” Abimbola Osundairo replied.
During cross-examination, the brothers, both aspiring actors and fitness aficionados, disputed that and other defense contentions about the attack. During more than 11 hours of testimony, which touched on minute details like Mr. Smollett’s grocery list and workout regimen, they told the court that Mr. Smollett instructed them to yell racist and homophobic slurs at him — and say, “This is MAGA country” — during the attack.
During one of the brothers’ testimony, the defense asked for a mistrial, suggesting the judge had misspoken during the proceedings and later asked for the judge to acquit Mr. Smollett. But Judge James Linn ruled against Mr. Smollett in both instances.
Thursday was a pivotal day in the trial as the prosecution, whose case relies heavily on the brothers’ credibility, rested after each brother told the jury in detail that Mr. Smollett had knowingly made a false police report about the attack.
Abimbola Osundairo, 28, testified on Wednesday that Mr. Smollett, who is gay, dreamed up the scheme because he had been disappointed by what he saw as a muted response from the television studio to a death threat he received days earlier.
Abimbola and Olabinjo Osundairo both appear in minor roles in the television show “Empire,” in which Mr. Smollett had starred. Abimbola Osundairo said he had agreed to participate in the hoax because he felt “indebted” to Mr. Smollett for securing him a role as a stand-in on the show, while Olabinjo Osundairo said that, as an aspiring actor, he had agreed because he wanted to “curry favor” with Mr. Smollett.
The defense’s efforts to undermine the brothers’ credibility included questions about guns and drugs found in Abimbola Osundairo’s home and accusations that Olabinjo Osundairo had a history of making homophobic comments.
Olabinjo Osundairo is not legally allowed to possess a gun because he was convicted of aggravated battery several years ago. But a detective testified earlier in the week that the guns were all Abimbola Osundairo’s and were owned legally and described the amount of cocaine discovered as “very small.”
One of Mr. Smollett’s lawyers, Tamara Walker, also cited discrepancies between Olabinjo Osundairo’s testimony and what he had said to the grand jury in the case. He told the grand jury, for example, that he had decided to pour bleach, instead of gasoline, onto Mr. Smollett because he wanted to avoid being seen filling up a gas container on a surveillance camera. In court on Thursday, though, he testified that he had chosen bleach because he thought it would be safer on Mr. Smollett.
The brothers remained composed during their sessions on the witness stand even as they were being questioned about several written conversations that Olabinjo Osundairo has had in which he made remarks that the defense cited as homophobic.
Olabinjo Osundairo, 30, denied any bias, explained the remarks as mistakes he had made because he was upset and asserted that he had “no hate for anybody.” The prosecution had earlier in the day shown the jury a photo of the brothers at the Chicago Pride Parade in 2015 in which they were dressed as Trojan warriors for a float that centered around the condom brand of the same name.
The mistrial request arose from this line of questioning as Judge Linn at one point described Ms. Walker’s questions about Mr. Osundairo’s past comments as “very collateral matters.” She argued, unsuccessfully, that the judge’s remark had discredited a part of the defense argument in front of the jury.
A third lawyer for Mr. Smollett, Heather Widell, accused Judge Linn of making “snarling faces” during the defense questioning. The judge objected to Ms. Widell’s characterization and pointed out her own “smiles and frowns.”
“There is no mistrial here,” Judge Linn said. “Frankly, I’m stunned you’d consider a mistrial based on that little colloquy.”
Earlier in the day, Olabinjo Osundairo testified that during the attack on Jan. 29, 2019, while his brother and Mr. Smollett were on the ground, he put a noose around Mr. Smollett’s face and made sure to pour the bleach on Mr. Smollett’s clothing, not his skin, to avoid severely injuring him.
The attack, which was first reported by Mr. Smollett’s aide, led to a large investigation by the Chicago Police who homed in on the brothers using surveillance footage from that night. They arrested the brothers at the airport upon their return from a trip to Nigeria.
The brothers were held by the police for about two days and were released after they told investigators that it had been Mr. Smollett who staged the attack, instructed them on details of when and where to approach him and even orchestrated a “dry run.”
In questioning the brothers, the special prosecutor in the case, Daniel K. Webb, suggested how unlikely it would have been for the brothers to have decided to attempt an attack on Mr. Smollett at about 2 a.m. on a frigid night near his apartment without having received some instruction from him.
“If you didn’t have advanced knowledge from Mr. Smollett, there is no way you would know he would be at this location,” Mr. Webb said. Abimbola Osundairo agreed. (He described that night as “colder than penguins’ feet.”)
The defense has argued that the brothers were able to pinpoint Mr. Smollett’s whereabouts by checking his Instagram account as he posted updates with his location.
The defense called Brandon Moore, Mr. Smollett’s former music manager who was on the phone with him when the attack occurred. Mr. Moore said he heard the slurs that proceeded the attack and then Mr. Smollett dropping the phone.
Dr. Robert Turelli, the physician who treated Mr. Smollett at the hospital on the night of the attack, was shown photos of the bruising on Mr. Smollett’s face and affirmed they were real injuries. CT scans indicated that Mr. Smollett had had “no traumatic injuries and no injuries that needed immediate intervention,” Dr. Turelli said.
Pam Sharp, Mr. Smollett’s former publicist who said Mr. Smollett “didn’t like the camera on him” outside of his job as an actor.
Judge Linn said that there would be no trial on Friday and that it would resume on Monday.