CHICAGO — Calling Jussie Smollett's prosecution a "travesty of justice," the actor's attorneys on Friday laid out arguments for his innocence in the case that made him an object of widespread derision and sparked the greatest crisis of Cook County State's Attorney Kim Foxx's career.
Far from being the architect of a hoax hate crime, Smollett's attorneys say he was, in fact, a victim twice over: First he suffered a real attack at the hands of two homophobic brothers and then the brothers framed Smollett by lying to police.
The brothers were also working with at least one other conspirator -- an as-yet unidentified white man, the attorneys alleged for the first time in the filing.
Smollett's attorneys laid out their defense in the greatest detail yet, all in an uphill effort to persuade Cook County Judge Michael Toomin to reverse his decision to appoint a special prosecutor to investigate why Foxx's office in late March suddenly dropped all charges alleging Smollett made up the attack to promote his career. Toomin's decision last month marked the latest bombshell in a case that has only gotten thornier since prosecutors abandoned the case less than three weeks after indicting Smollett on 16 counts of disorderly conduct.
"Not only have the media and the public failed to critically look at the evidence (and lack thereof) against Mr. Smollett, but now (Toomin) has accepted false media reports to presume Mr. Smollett guilty of charges which he pled not guilty to and which were dismissed against him," the filing said.
Reached by phone Friday, the brothers' attorney, Gloria Schmidt, said Friday she hadn't yet read the Smollett's defense new filings but expressed confidence that "the evidence will come out."
"My clients have fully cooperated, and will continue to fully cooperate with (prosecutors) and the police," she said.
Smollett, then an actor on the "Empire" TV series, created a media firestorm in late January when he reported being the victim of an attack by two people -- one white -- who shouted racist and homophobic slurs and put a noose around his neck near his home in the Streeterville neighborhood. Smollett is black and openly gay.
Weeks later, though, Smollett was criminally charged for allegedly staging the attack with the help of Abimbola and Olabinjo Osundairo, two brothers of Nigerian descent whom police said he agreed to pay $3,500.
But less than three weeks after indicting Smollett on the false-report charges, Foxx's office dropped all charges at an unannounced court hearing while still insisting to reporters later that same day that police had gotten it right. Days later, though, Foxx herself, while offering no specifics, suggested for the first time that the evidence against Smollett was shakier.
As Smollett maintained his innocence, public outcry grew, with some calling for Foxx's resignation.
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Smollett's attorneys, who have defended Smollett's version from the start, told the Chicago Tribune this spring that prosecutors approached them early on about making the case go away. But Friday's filing marks his lawyers first formal effort to detail the facts that they say exonerate Smollett.
The whole matter will be reopened anew when Toomin appoints a special prosecutor. In his decision, the veteran judge asserted that Foxx overstepped her authority when she recused herself from the Smollett matter and put her top deputy in charge. The eventual special prosecutor will have broad powers to investigate Foxx's office as well as potentially bring new charges against Smollett.
But Smollett's attorneys argue Toomin's ruling is on shaky legal ground because any further charges against Smollett would be violating the actor's rights against double jeopardy. Toomin should throw out his ruling or at least prohibit the special prosecutor from charging Smollett again, they argue.
Smollett's team took issue with Toomin making no secret in his ruling of his belief that Smollett staged the attack. That attitude surely affected his decision, the attorneys said, even though he was not tasked with determining Smollett's guilt or innocence.
In a separate filing, Smollett's attorneys asked that Toomin be removed from presiding over the case, citing his alleged bias.
Much of Friday's main filing painted the Osundairo brothers as homophobic liars whose statements to police are not supported by independent evidence.
The actor was widely mocked for saying one of his attackers was white before identifying the Osundairo brothers -- who are black -- as his attackers.
But police interviewed one witness who saw a white man loitering nearby around the time of the attack who appeared to have a rope under his jacket, Smollett's attorneys revealed, citing police reports. Another witness said he saw a white man wearing a ski mask near the scene of the attack, according to the filing.
That points to at least one additional collaborator in the attack, Smollett's attorneys contended.
The filing also repeats what the actor's attorneys told the Tribune this spring: that a text from Smollett to Abimbola Osundairo, his friend and sometime trainer, asking for help "on the low" was taken out of context by police and prosecutors. Smollett, in fact, wanted Osundairo to bring him back illegal herbal steroids from an upcoming trip to Nigeria, they said.
Schmidt, the brothers' attorney. has scoffed at that explanation, saying the Osundairos believe in being steroid-free.