In opening the trial, a prosecutor said Mr. Smollett had staged a hate crime because a death threat he received was not taken seriously enough at work.
By Julia Jacobs and Mark Guarino
Nov. 29, 2021
The actor Jussie Smollett made himself the victim of a staged hate crime in 2019 to draw the attention of his colleagues on the television show “Empire” after he decided they had failed to take an earlier written threat seriously, a prosecutor said in a Chicago court on Monday.
Dan K. Webb, the special prosecutor, laid out what he saw as Mr. Smollett’s motive in opening arguments of the actor’s trial on criminal charges that he lied to the police when he reported he had been the victim of a racist and homophobic attack.
In January 2019, Mr. Webb said, Mr. Smollett received an anonymous “actual hate letter,” which included a homophobic slur and a drawing of a stick figure hanging from a tree. The letter included the acronym “MAGA” made of cutout newspaper and magazine letters, he said, a reference to former President Donald J. Trump’s campaign slogan. Law enforcement has not been able to determine who sent the letter, Mr. Webb said.
“Therefore, he devised this fake hate crime to take place so that the ‘Empire’ studio would take this more seriously,” he said of Mr. Smollett, “because this fake hate crime would get media attention.”
Nearly three years ago, when Mr. Smollett reported that he had been assaulted, he was primarily known for “Empire,” a drama in which he played a son vying for control of his father’s music empire. He later lost that role after being indicted on charges that he had lied to the police, who concluded that he had paid two brothers he knew to stage the attack.
After a drawn-out and tumultuous legal process, the trial began at the Leighton Criminal Courthouse in Chicago with the selection of 12 jurors and three alternates. Mr. Smollett arrived at the courthouse Monday morning, clutching the arm of his mother, Janet Smollett, and sat with several family members as the opening arguments began.
Mr. Smollett is standing trial on six counts of felony disorderly conduct associated with the reports he made to the police. The grand-jury indictment asserts he had “no reasonable ground for believing that such an offense had been committed.”
An hourlong overview of the evidence that Mr. Webb plans to present includes the accounts of the brothers, Abimbola and Olabinjo Osundairo. Mr. Webb said that after Mr. Smollett received the anonymous threatening letter, he showed a photo of it to Abimbola Osundairo — a friend and an extra on “Empire” — and later asked if he would help him stage an attack.
“They agreed they should bruise him a little bit to make it look good,” Mr. Webb said.
He said evidence also includes surveillance footage of Mr. Smollett driving around Chicago with the Osundairos on the day that the brothers said they planned the attack and, shortly before the attack, Instagram messages from Mr. Smollett to Abimbola Osundairo with updates on Mr. Smollett’s delayed flight back to Chicago.
After Mr. Smollett reported the attack, Mr. Webb said, he refused to turn over some evidence to the Chicago Police Department, including his cellphone, medical records from his hospital visit after the alleged attack and a saliva swab that police said would help eliminate his DNA from samples.
In the defense’s opening argument, which lasted about 20 minutes, Mr. Smollett’s lead lawyer, Nenye Uche, sought to cast doubt on the accounts of the brothers, whom he described as Mr. Smollett’s “self-confessed attackers.”
“It was a real crime that occurred against Jussie,” Mr. Uche said, adding that the brothers “did not like him” and that it was possible that a third person had been involved in the attack.
Mr. Uche took issue with the prosecution’s suggested motive, saying that after Mr. Smollett received the anonymous letter, the studio behind “Empire” tried to “push security on him” but that the actor had refused.
“The evidence will not show that Jussie Smollett wanted attention,” Mr. Uche said. “Jussie was not a person who liked attention. His publicist was frustrated with him because of that.”
The motive that Mr. Webb laid out differed from what the police said in February 2019: that Mr. Smollett had planned the attack because he was upset about his salary on “Empire” and was seeking publicity. The police also accused him of having written the threatening letter himself.
When his account of being attacked on a late-night run to pick up a tuna sandwich became public, it struck a chord in a politically divided nation confronting the persistent threat of racism. The actor told the police his attackers poured bleach on him, placed a rope around his neck and yelled, “This is MAGA country.”
Lawmakers, activists and celebrities reacted furiously to the incident, but the dialogue shifted abruptly in February 2019, when the police told the public that Mr. Smollett had paid two men $3,500 to stage the attack. Mr. Uche said in court on Monday that the payment was for Abimbola Osundairo to help Mr. Smollett with physical training for an upcoming music video.
Comedians used the story as a punchline. Mr. Trump said it was a smear on his supporters, while liberal politicians condemned it as a disservice to victims of hate crimes.
“I’m sad, frustrated and disappointed,” Kamala Harris, who was a senator and presidential candidate at the time, wrote on Twitter. “When anyone makes false claims to police, it not only diverts resources away from serious investigations but it makes it more difficult for other victims of crime to come forward.”
Mr. Smollett has maintained his innocence, pleading not guilty to the charges and insisting the attack happened just as he described.
“They won’t let this go,” Mr. Smollett said in an Instagram interview last year. “There is an example being made, and the sad part is that there’s an example being made of someone that did not do what they’re being accused of.”
Initially, the Cook County State’s Attorney’s Office dropped the felony charges against the actor, saying that Mr. Smollett had forfeited his $10,000 bond and explaining that he was not a threat to public safety and had a record of service to the community. Chicago’s police superintendent at the time, Eddie Johnson, and Mayor Rahm Emanuel, suggested Mr. Smollett had gotten special treatment because of his celebrity status.
Kim Foxx, Chicago’s top prosecutor, stood by her decision.
“Yes, falsely reporting a hate crime makes me angry, and anyone who does that deserves the community’s outrage,” Ms. Foxx wrote in a Chicago Tribune op-ed after her office dropped the charges. “But, as I’ve said since before I was elected, we must separate the people at whom we are angry from the people of whom we are afraid.”
In the months that followed, much of the discussion surrounding the case focused on how prosecutors had handled it.
Ms. Foxx had recused herself from overseeing the case to avoid any perception that she had a conflict of interest after disclosing that she had communicated with Mr. Smollett’s representatives when he was still considered a victim. She delegated it to a deputy, but text messages later showed that Ms. Foxx had remained closely engaged with the case, expressing concern to a colleague that the office was treating the actor too harshly.
Later in 2019, a judge appointed Mr. Webb as a special prosecutor to review whether charges should be reinstated and to assess whether there had been any misconduct in the handling of the case by the state’s attorney’s office.
Mr. Webb renewed charges against Mr. Smollett in February 2020.
He later determined that the state’s attorney’s office had not violated the law, but did abuse its discretion in deciding to drop charges and put out false or misleading public statements about why it did so.
With the start of the trial, the focus turned back to the facts of what happened on Jan. 29, 2019, at around 2 a.m., when Mr. Smollett was walking near his apartment in downtown Chicago.
According to a cache of text messages related to the case, Mr. Smollett texted Abimbola Osundairo four days before the attack, saying, “Might need your help on the low. You around to meet up and talk face to face?” The brothers told the police that Mr. Smollett met with them later that day and asked them to help stage the attack and again two days later to discuss the details. A lawyer on Mr. Smollett’s team, Tina Glandian, said in 2019 that her client’s text message was asking for help getting herbal steroids in Nigeria, not help staging the attack.
Ms. Glandian declined to comment on whether Mr. Smollett would be testifying at the trial.