Jussie Smollett asks judge to overturn hate hoax conviction

"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," the appeal says.

Hannah Nightingale Washington DC

In an Illinois court on Tuesday, attorneys for disgraced actor Jussie Smollett requested that the hate hoax charges handed down to him in 2021 be dismissed.

Smollett didn’t speak during the hour-long oral arguments before the three-judge panel at the First District Appellate Court, but instead sat in the spectator benches. He left without speaking to reporters, according to USA Today.

In the 76-page written appeal, Smollett argues that his trial violated his Fifth Amendment rights against being punished for the same crime twice. The appeal said that Smollett already performed community service and forfeited a $10,000 bond, all part of a 2019 deal with the Cook County State’s Attorney’s Office to drop the charges, which was the issue being focused on during Tuesday’s hearing.

Smollett’s legal team said Kim Foxx’s office used proper discretion to drop the charges at the time.

"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," the appeal says.

Sam Wieber, who is representing the special prosecutor, said that how Foxx’s office went about dismissing the charges left the door open to Smollett being recharged.

Wieber said that if a defendant hasn’t gone to trial and never pleaded guilty, it typically doesn’t count as double jeopardy if the defendant is indicted a second time on the same charges.

"Illinois law is crystal clear. ... It's Law School 101," he said about the criteria.

Smollett, Wieber said, has never pleaded guilty, and "has never made any statement that he accepts guilt."

If the appeal fails, Smollett will be required to finish out his 150-day sentence that was handed down in 2022. Smollett spent six days in jail, and was released pending the outcome of the appeal.

Smollett was found guilty in December of 2022 on five of six counts, stemming from a hate hoax planned by the former Empire star.

The 39-year-old star allegedly paid the Osundario brothers $3,500 to attack him in the street. He claimed that he, a gay black man, was attacked by MAGA hat-wearing white men in the streets of Chicago, where he said they poured bleach on him, used a rope fashioned into a noose, and hurled racist and homophobic insults at him.

Police were able to discover the identity of his alleged attackers by tracking information on who ordered the Uber that dropped them off.

Surveillance footage captured Smollett and the brothers going through a dry run of the attack in the days prior.

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