Actor Jussie Smollett’s Conviction Stands in Faked Assault Case

Jussie Smollett is headed to prison for 150 days after an Illinois appellate court upheld his conviction on crimes stemming from faking a racist and homophobic attack in downtown Chicago.

In a 2-1 decision, the Illinois Appellate Court, First District ruled that Smollett’s case didn’t end when state prosecutors declined to prosecute him because he didn’t enter into a cooperative agreement with the government to drop his case.

Under well-established Illinois law, a decision not to prosecute “is not a final disposition of the case, and will not bar another prosecution for the same offense,” Justice David Navarro wrote for the court.

Smollett had argued he couldn’t be indicted again for the same crimes under his Fifth Amendment’s double jeopardy clause. But the court said double jeopardy didn’t apply in this case because no jury had been impaneled, no witness had been sworn in, no evidence had been introduced, and Smollett had not pled guilty. Because none of these actions occurred, jeopardy did not attach to Smollett’s first criminal prosecution, the justice wrote.

A grand jury indicted Smollett on 16 counts of felony disorderly conduct for falsely reporting to Chicago police he had been physically attacked by two men shouting racist and homophobic slurs. After the Cook County state’s attorney’s office declined to prosecute, a special grand jury indicted Smollett again on six counts of felony disorderly conduct based on similar allegations. A jury found him guilty of five counts of the indictment.

Smollett appealed, arguing that no statutory authority existed to appoint of a special prosecutor and the circuit court erred in denying defense counsel’s motion for a substitution of judge.

The case is Illinois v. Smollett, Ill. App. Ct., 1st Dist., No. 1-22-0322, opinion 12/1/23.