Jury seated in trial of Jussie Smollett, ex-‘Empire’ actor

UPDATE:

Testimony is set to begin Tuesday in the trial of ex-"Empire" actor Jussie Smollett, who prosecutors say staged a homophobic and racist attack in Chicago but whose defense attorney says is "a real victim" of a "real crime."

Special prosecutor Dan Webb told jurors during opening statements late Monday that Smollett recruited two brothers — who worked with him on the TV show — to help him carry out a fake attack in January 2019 because he believed the television studio didn’t take hate mail he had received seriously.

Smollett then reported the alleged attack to Chicago police, who classified it as a hate crime and spent 3,000 staff hours on the investigation, Webb said. The actor told police he was attacked by supporters of then-President Donald Trump — igniting political divisions around the country.

"When he reported the fake hate crime that was a real crime," Webb said.

Defense attorney Nenye Uche said the two brothers attacked Smollett because they didn’t like him and that a $3,500 check the actor paid the men was for training so he could prepare for an upcoming music video. Uche also suggested a third attacker was involved and told jurors there is not a "shred" of physical and forensic evidence linking Smollett to the crime prosecutors allege.

"Jussie Smollett is a real victim," Uche said.

Smollett is charged with felony disorderly conduct. The class 4 felony carries a prison sentence of up to three years, but experts have said it’s likely that if Smollett is convicted he would be placed on probation and perhaps ordered to perform community service.

An earlier version of the story continues below.

Two brothers stand at the center of the case that prosecutors will lay before jurors during the trial of Jussie Smollett this week.

The former “Empire” actor contends he was the victim of a racist and homophobic assault in downtown Chicago on a frigid night in January 2019. The siblings, who worked with him on the TV show, say he paid them $3,500 to pose as his attackers.

A jury was sworn in Monday in the Chicago courtroom, though an unknown number of alternate jurors were still being selected late afternoon. Judge James Linn, who said he expects the trial to take about one week, was asking potential jurors if they have been the victim of a hate crime, if they have watched “Empire” or TMZ, a program and website about celebrities, or if they belong to any civil rights or pro-police organizations. Cameras are not allowed inside the courtroom and the proceedings are not being livestreamed, unlike in other recent high-profile trials.

Smollett, who arrived at the courthouse with his mother and other family members, is accused of lying to police about the alleged attack and has been charged with felony disorderly conduct. A class 4 felony, the crime carries a prison sentence of up to three years but experts have said it is more likely that if Smollett is convicted he would be placed on probation and perhaps ordered to perform community service.

Whether Smollett, who is Black and gay, testifies remains an open question. But the siblings, Abimbola and Olabinjo Osundairo, will take the witness stand where they are expected to repeat what they have told police officers and prosecutors: that they carried out the attack at Smollett’s behest.

Jurors also may see surveillance video from more than four dozen cameras that police reviewed to trace the brothers’ movements before and after the reported attack, as well as a video showing the brothers purchasing a red hat, ski masks and gloves from a beauty supply shop hours earlier.

Smollett’s attorneys have not spelled out how they will confront that evidence and the lead attorney, Nenye Uche, declined to comment ahead of this week’s proceedings. But there are clues as to how they might during the trial.

Buried in nearly 500 pages of Chicago Police Department reports is a statement from an area resident who says she saw a white man with “reddish brown hair” who appeared to be waiting for someone that night.

She told a detective that when the man turned away from her, she “could see hanging out from underneath his jacket what appeared to be a rope.”

Her comments could back up Smollett’s contention that his attackers draped a makeshift noose around his neck. Further, if she testified that the man was white, it would support Smollett’s statements — widely ridiculed because the brothers, who come from Nigeria, are Black — that he saw pale or white skin around the eyes of one of his masked attackers.

Given there is so much evidence, including the brothers’ own statements, that they participated in the attack, it is unlikely that Smollett’s attorneys will try to prove they did not take part. That could perhaps lead the defense to contend that Smollett was the victim of a very real attack at the hands of the brothers, perhaps with the help of others, who now are only implicating the actor so they won’t be charged, too.

The $3,500 check could be key, although Smollett says he wrote it to pay one of the brothers to work as his personal trainer.

“I would assume the defense is going to zero in on that,” said Joe Lopez, a prominent defense attorney not involved with the case.

What they will almost certainly do is attack the brothers’ credibility, reminding jurors that they are not facing the same criminal charges as Smollett, despite admitting they took part in the staged attack.

“Everything Smollett is responsible for, they are responsible for,” said David Erickson, a former state appellate judge who teaches at Chicago Kent College of Law and is not involved in the case.

Finally, Smollett’s career could take center stage. Prosecutors could make the same point that then-Police Superintendent Eddie Johnson made when he announced Smollett’s arrest in 2019: that Smollett thought the attack would win him more fame and a pay raise.

But Lopez said the defense attorneys might ask the jury the same question he asked himself.

“How would that help him with anything?” he asked. “He’s already a star.”