Attorneys for Jussie Smollett filed arguments Wednesday explaining why they’re appealing the former “Empire” actor’s 2021 hate crime hoax conviction and want a new trial.
The court document, filed Wednesday in the Illinois First Judicial District appellate court, raises multiple arguments, including that Smollett’s prosecution violated his due process rights, in part by not enforcing what his attorneys describe as a binding non-prosecution agreement.
Smollett also argues that he was subjected to double jeopardy, takes issue with the appointment of a special prosecutor and argues his sentence was excessive, among other things.
CNN has reached out to special prosecutor Dan Webb’s office for comment.
Smollett, who is Black and gay, has said two men struck him, yelled anti-gay and racist remarks, put a noose around his neck and poured bleach on him on a frigid night in Chicago in January 2019. Police initially investigated the incident as a possible hate crime and poured significant resources into solving the case and locating the men.
But after interviewing the men and finding other evidence, authorities instead determined that Smollett paid them $3,500 to stage the hate crime against him so he could get publicity and a career boost.
Smollett’s attorneys argued he was a real victim and the men saw the actor as a “mark” or “target.” Prosecutors argued he had staged the attack.
A jury found Smollett guilty in December 2021 of five out of six felony counts of disorderly conduct for making a false report to police.
He was sentenced in March 2022 to 30 months of felony probation, including 150 days in jail, and ordered to pay restitution of more than $120,000 and a fine of $25,000 for making false reports to police.
Smollett was released from jail less than a week later, after an Illinois appeals court granted an emergency motion by his attorneys to delay his sentence and grant him bail until their appeal is resolved.
Smollett’s attorneys are requesting in the appeal that he get a new trial with a different judge.
One of their arguments involves double jeopardy; they say he was charged twice for the same crimes.
In their appeal, his attorneys wrote, “If Mr. Smollett’s convictions are allowed to stand, this case will set a dangerous precedent by giving prosecutors a second bite at the apple any time there is dissatisfaction with another prosecutor’s exercise of discretion,” they wrote.
The passage refers to the local prosecutors dropping the 16 initial charges against Smollett on March 26, 2019, with the Cook County State’s Attorney’s Office saying the decision came after reviewing the case and after the actor agreed to forfeit his $10,000 bond and do community service.
The move prompted anger – particularly from then-Mayor Rahm Emanuel and Chicago Police – and critics claimed State’s Attorney Kim Foxx’s office treated Smollett differently because he is a celebrity.
In June 2019, a Cook County circuit judge approved the appointment of special prosecutor Webb to investigate the handling of Smollett’s case. He was given the authority to pursue prosecution of Smollett.
A grand jury indicted Smollett in February 2020 for making false reports after Webb said his office “completed all of its investigative steps regarding Jussie Smollett, and has made the decision to further prosecute Mr. Smollett.”
Smollett was written out of the final episodes of the Empire’s fifth season and didn’t return for the sixth and final season.
CNN’s Steve Almasy contributed to this report.
