An Illinois appeals court sided with Jussie Smollett Wednesday and ruled the Empire actor recently convicted of staging a hate hoax in January 2019 should be released on bond pending the outcome of his appeal.
The surprise decision, which sprung Smollett from custody after he signed a $150,000 personal recognizance bond, followed less than a week after a Cook County judge sentenced him to five months in a Chicago jail for his conviction on five counts of disorderly conduct.
The ruling, signed by two of the appellate panel’s three justices, found that “the defendant has been convicted on non-violent offenses” and “this court will be unable to dispose of the instant appeal before the defendant would have served his entire sentence of incarceration.”
The actor, 39, walked out of Cook County jail minutes before 8 p.m. local time, hugged his lawyers and other supporters, and then climbed into a waiting SUV without answering reporters’ questions, according to a live feed from NBC Chicago.
“They released him, and that says a lot about what the appellate court thinks of this case,” lead defense lawyer Nenye Uche said in a video posted on Smollett’s Instagram account.
Speaking outside the jail, Uche said his client was stunned by the decision. “He was shocked. I think he had nearly given up,” the lawyer told reporters. Uche also confirmed Smollett hadn’t consumed anything but ice water during his six-day detention. “Maybe being in a cage for a Class 4 [felony] is enough to make you not eat.”
Smollett’s family and legal team sought his release in an emergency motion filed after he was whisked out of his sentencing hearing last Thursday and booked into custody. They argued his disputed jail term would be over by the time his pending appeal is resolved and claimed that the combination of “vicious threats” against him, the stringent rules of his court-ordered protective custody, and the ongoing Covid-19 pandemic put Smollett at risk of physical harm if he remained locked up.
“At this point, our biggest priority is getting our brother out of jail,” Jussie’s brother, Jocqui Smollett, told Rolling Stone on Tuesday. “He’s a strong individual, but it’s not right. It’s traumatic. It’s a mental marathon. We want to get him out.
“How can you bring charges back against someone who paid a $10,000 fine and was sentenced to community service?” Jocqui said, referring to the bombshell announcement in March 2019 that prosecutors had decided to dismiss Jussie’s original grand jury indictment on 16 counts of disorderly conduct in exchange for community service and the forfeiture of his $10,000 bond payment. “I believe it’s double jeopardy,
Jussie was eventually re-indicted after a Cook County judge ruled that Illinois State’s Attorney Kim Foxx had erred when she recused herself in the case and handed the prosecution over to a deputy instead of an independent prosecutor.
“It is unconstitutional to charge someone twice,” Uche said Wednesday, referring to the double-jeopardy argument underpinning his appeal. “[Smollett] paid a $10,000 fine and did community service. Now, there is no time machine to go back in time to undo those things. His $10,000 fine hasn’t even been returned to him.”
He called Jussie’s sentence “wrong” and racially motivated: “Some people might think that Mr. Smollett is guilty. I disagree, we all disagree, but that’s OK, you’re entitled to your opinion. The real question is, ‘Should Black men be walked into jail for a Class 4 felony?’ Shame on you if you think they should. That’s a disgrace. It’s wrong.”
Special Prosecutor Dan Webb opposed Smollett’s release on Wednesday, writing to the court before its decision that the actor was relying on “half-truths and misleading statements, at best, to manufacture an alleged emergency,” the Chicago Tribune reported.
“Not only is Smollett not being held in solitary confinement, but the Cook County sheriff’s office made public the specific measures that are being taken to ensure the health, safety, and well-being of Mr. Smollett while he serves his jail term,” Webb wrote.
Cook County sheriff’s officials said in a statement Tuesday that Smollett had been relocated to the new cell after he was first placed in one with a bed that could be outfitted with restraints. “Mr. Smollett was never restrained to a bed or anything else in the cell. The bed was never equipped with restraints,” the department said.
“The safety and security of all detained individuals, including Mr. Smollett, is the Sheriff’s Office’s highest priority,” the statement said.
Smollett’s bizarre saga started more than three years ago, when he first told police that two men disguised in balaclava-style masks hung a noose around his neck and yelled racist and homophobic slurs at him during an assault on a snowy street outside his Chicago apartment.
In the weeks following his report, Smollett himself became a suspect in the incident, with authorities accusing him of staging the attack with help from Nigeria-born brothers Abimbola and Olabinjo Osundairo.
The brothers testified at trial that Smollett paid them to stage the attack. Smollett maintained his innocence through defiant testimony, but a jury convicted him on all but one count on Dec. 9, 2021.
“We are gratified that Jussie will be back with his family and loved ones and look forward to a dispassionate review and reversal of the serial injustices visited upon him,” Tina Glandian, another lawyer on Smollett’s team, said Wednesday in a statement to Rolling Stone.