CHICAGO — Jussie Smollett was released from jail Wednesday by an appeals court that agreed with his lawyers that he should be released pending an appeal against his conviction for lying to police about a racist and homophobic attack.
The decision comes after a Cook County judge sentenced Smollett to an immediate 150 days in prison last week for his conviction on five counts of disorderly conduct for lying to police. The appeals court said Smollett could be released after posting a $150,000 personal bail.
Smollett’s lawyers argued that he would have served his sentence by the time the appeal process was completed and that Smollett could be in danger of physical harm if he remained locked up in the Cook County Jail.
The court ruling marks the latest chapter in a strange story that began in January 2019 when Smollett, who is black and gay, told Chicago police he was the victim of a racist and homophobic attack by two men wearing ski masks. The search for the attackers soon turned into an investigation into Smollett himself and his arrest on charges that he orchestrated the attack and lied about it to the police.
The investigation revealed that Smollett paid two men he knew from his work on the television show Empire to stage the attack.
In December, a jury found Smollett guilty of five counts of disorderly conduct, a charge made when a person lies to police. He was acquitted on the sixth count. Last week Judge James Lynn sentenced Smollett to 150 days in jail, but with good behavior he could be released in just 75 days.
Smollett maintained his innocence during his trial. During sentencing, he yelled at the judge that he was innocent, warning the judge that he was not suicidal and that if he died in custody, it would be someone else, not him, who would take his life.
THIS IS A BIG NEWS UPDATE. The earlier history of the AP follows below.
CHICAGO (AP) — Lawyers for Jussie Smollett say they plan to challenge almost everything that has happened in court over the past few months, from the actor’s December conviction for lying to police to a 150-day sentence handed down by a judge last week. And they want the actor to be released from prison immediately, rather than waiting for the outcome of the case.
Now the question of whether Smollett should be in jail during these scheduled appeals is before the state appeals court, and while appeals could take months to resolve, whether Smollett remains in jail will be resolved much faster.
This is because Smollett’s attorneys petitioned the First Circuit Court of Appeals to have his jail sentence suspended and to allow Smollett to post bail so that he can be released from custody during the appeal process. And they asked the court to delay Smollett’s $140,000 fine and restitution that Cook County Judge James Lynn ordered as part of his verdict.
From the point of view of Smollett’s lawyers, such an order is justified, because it is almost certain that Smollett will serve his 150-day prison sentence – which can be reduced to 75 days if he behaves in prison – before decisions are made on appeals against the conviction. and a verdict. . They also say that it is important to release Smollett because they are concerned about his mental health if he remains in custody in prison and are concerned that he may be attacked by other inmates.
Special Counsel Dan Webb’s office asked the court late on Wednesday to dismiss Smollett’s motion, calling the request for a stay of his jail sentence illogical and claims that his health and safety were at risk “factually incorrect.”
“Instead of attempting to fulfill his burden by providing strong grounds for his immediate release, Mr. Smollett makes only superficial, woefully undeveloped arguments,” wrote Deputy Special Counsel Sean Wieber.
In an interview with The Associated Press, David Erickson, a former state appellate judge who teaches at the Kent Law College in Chicago, explained what’s next.
First, the appeal will be heard by one judge. Erickson said that this judge alone could end the case right now.
“If one judge denies the motion, that’s it,” Erickson said. “That means the court won’t hear him.”
This also means that lawyers will receive nothing more than a brief and clear notice of the denial of the petition. Most likely, there will be no reason or any statement.
Lawyers will also not be able to appear before a judge and state their position. The only thing the judge will use is the documents filed by the lawyers.
But that first judge may uphold the case if he or she believes that the motion has any merit. The judge then refers the motion to two other judges for consideration. Judges can call lawyers for oral presentations, but they can also simply rely on documents filed by lawyers.
Two of the three judges must agree to grant the motion. If they do so, the lawyers will be notified that the petition has been granted. This time, Erickson said, they would explain their reasoning.
If this happens, the appellate court may set Smollett’s bail or return Lynn’s case for bail. And with that, Smollett can get out of jail.
Which arguments will influence the judges, of course, is unclear. But Erickson said it’s clear that the argument that Smollett will finish his term before a decision is made on his appeal is not a starting point.
“This is not a legal argument, and the appeals court is limited to only legal errors,” he said, adding that while motions like those made by Smollett’s legal team are common, they are not often granted.
Erickson said that the fact that the judge spoke for over half an hour when sentencing Smollett suggested that he expected the verdict to be appealed.
“The standard they (Smollett’s lawyers) have to show is whether the judge abused his discretion in sentencing,” he said. And speaking for as long as he did, and addressing his reasoning as specifically as he did, “He (Lynn) was going to make sure that (the appeals court) understood why he did what he did and that he did not abuse his discretion. ”
Rejection can come within hours or a day, and if the judges want to hear more, it can take days or maybe a week to make a decision. But Erickson said that such things are usually resolved very quickly.
“They could (rule) immediately, overnight, or (in) a week,” Erickson said.
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Read the full AP report on the Jussie Smollett case.