the law

All Your Questions About Jussie Smollett’s Charges Being Dropped, Answered

Jussie Smollett. Photo: Nuccio DiNuzzo/Getty Images

It all started after midnight on January 29, the night Empire star Jussie Smollett says he was attacked on a Chicago street. The 36-year-old told police that he was beaten outside of the Loews Hotel by two white men in ski masks who yelled racist and homophobic slurs, and championed “MAGA country,” as they tied a rope around his neck and poured bleach on him.

Due to the serious nature of the allegations, the Chicago police immediately began investigating the incident as a possible hate crime. They even discovered a threatening letter that was reportedly sent to the actor prior to the alleged attack. It contained anti-gay rhetoric and a mysterious white powder.

As news broke of the shocking incident, many celebrities and politicians rallied behind the openly gay actor, both in the press and on social media. Presidential candidate Kamala Harris even called the incident a “modern-day lynching,” while Smollett appeared on a television interview on ABC with Robin Roberts, where he reiterated that what he told police was unequivocally true.

It wasn’t until early February, when investigators uncovered a blurry video of two men walking near the supposed crime scene that the case took a very unexpected turn, one that would eventually cast suspicion on the actor himself. On February 20, a Cook County, Illinois, grand jury found probable cause that Smollett staged the attack. The young actor was arrested, charged with felony disorderly conduct, and released on bond shortly before being written off the hit show Empire. Smollett was also slapped with 16 more felony counts after allegedly lying to police about a hate crime.

But then on March 26, prosecutors in the case abruptly dropped all charges against the Empire actor. It’s a shocking, confusing turn in this high-profile case, so we’ve answered some of the biggest questions about what may have led to the decision, what punishment Smollett may have escaped, and what could possibly be revealed next in this bizarre story.

Wait, the charges against Smollett were dropped?
Yes, all charges against the actor were dropped as of March 26 by the Cook County State’s Attorney’s Office. While the prosecutors have not revealed why they dropped the felony charges, they said the decision was made after reviewing all of the facts in light of Smollett’s forfeiture of his $10,000 bond. Usually when charges are dropped, the bond is returned to the defendant; in this case, Smollett agreed to give the bond he paid to the city, which is unprecedented.

“After reviewing all of the facts and circumstances of the case,” the state’s attorney’s office said in a statement, “ including Mr. Smollett’s volunteer service in the community, and agreement to forfeit his bond to the City of Chicago, we believe this outcome is a just disposition and appropriate resolution to this case.”

As a result, Smollett will not face trial. He is a free man with an expunged record.

Weren’t there 16 different charges added to his initial charge?
Yes. On March 8, Smollett was charged with 16 more felony counts of disorderly conduct for filing a false police report. The grand jury specifically returned two separate sets of charges related to the actor’s allegations that his supposed attackers called him racist and homophobic slurs, used a noose, and poured a chemical on him. His testimony to police immediately after the incident, as well as his second interview with police, had both contributed to the last grand jury decision, the prosecutors said.

All of these 16 charges were dropped as well on March 26. Smollett’s attorneys have also requested and been granted that the records be sealed, which means the public may never learn about the evidence against the actor.

What happened to the video evidence mentioned in the complaint?
Any and all evidence in this case would have been considered by the prosecutors. At this point, it’s unclear whether the alleged video evidence of the attack existed, and even if it did, we do not actually know what it showed or how it may have portrayed the incident in question. The very existence of evidence, or lack thereof, likely played a role in the State’s Attorney’s Office decision to drop all charges against Smollett.

Did leaks and press appearances by the Chicago Police contribute to the decision to drop charges?
It may not have helped. Smollett’s attorneys argued from the beginning that the police overstepped when they held the initial press conference and painted Smollett as a criminal. His attorneys likely made the case behind closed doors that the actor being vilified by the police and press would have made it next to impossible for him to get a fair trial.

TMZ reported that the Chicago Police are “furious” with the State’s decision to drop all of the charges. Police Superintendent Johnson said in a press conference on March 26, “Do I think justice was served? No.”

In the same press conference, Chicago Mayor Rahm Emanuel also called the decision to drop the charges “a whitewash of justice,” citing the grand jury’s decision to bring 16 felony charges after seeing “a sliver” of evidence. He accused the prosecutors of treating Smollett differently from other defendants because of his fame.

As of last week, the Chicago Police confirmed they were opening an investigation into the alleged leaks in this case.

The Chicago PD also released several police reports from the case after it was announced the charges were dropped. (The reports can be read here and here.) They reveal, in part, that Smollett was never handcuffed, placed into a cell, or “subjected to the media” while he was in custody.
The reports do not, however, include most of the materials related to this case. And that’s because a new court order has prevented the CPD from releasing any additional records, police spokesman Anthony Guglielmi said. “We were advised at 9:30 a.m. this morning [March 27] that the CPD records and investigative files are now under seal by order of the court,” he said.

Has there been any backlash to the charges being dropped?
Yes, in both the political and legal worlds. On March 28, the Illinois Prosecutors Bar Association accused the prosecutors of having “fundamentally misled the public on the law and circumstances surrounding the dismissal,” saying that the way in which the Cook County State’s Attorney Kim Foxx and her office resolved the case was “abnormal.”

The association specifically said: “The appearance of impropriety here is compounded by the fact that this case was not on the regularly scheduled court call, the public had no reasonable notice or opportunity to view these proceedings, and the dismissal was done abruptly at what has been called an ‘emergency’ hearing. To date, the nature of the purported emergency has not been publicly disclosed. The sealing of a court case immediately following a hearing where there was no reasonable notice or opportunity for the public to attend is a matter of grave public concern and undermines the very foundation of our public court system.”

The prosecutor’s office is also being criticized by the association for suggesting that somehow sealing the records in this case was mandatory. And Foxx herself has been criticized for not properly recusing herself over having a personal tie to a witness, by appointing someone within her own office to take over the case; legal experts are now saying a special prosecutor should have been appointed in a more formal capacity.

There’s also the money situation. This investigation cost the city a lot in man hours. As such, the Chicago corporation counsel asked on March 28 that Smollett be required to pay more than $130,000 for the cost of the investigation, while officials in both Illinois and the White House have suggested there should be an investigation into why the charges were dropped in the first place. State House Republican Leader Jim Durkin has already asked the state’s attorney general to do a “thorough review,” while President Trump tweeted, “FBI & DOJ to review the outrageous Jussie Smollett case in Chicago.”

The FBI and Justice Department are now expected to evaluate the prosecutor’s involvement in the case after the police union also called for an investigation.

In addition, Republican State Representative from Chicago Michael McAuliffe introduced legislation that could prohibit any production that hires the actor from benefiting from the Illinois Film Tax Credits. “A lot of valuable Chicago Police Department (CPD) man hours and resources were wasted chasing down a bogus crime arranged by Smollett,” he said. “Hate crimes are serious and so is the time and effort of the CPD. He has cost Chicago a lot more than a $10,000 bond.”

As to the way the case was handled, well, the National District Attorneys Association also just released a powerful statement about best practices that doesn’t shy away from addressing the way Smollett’s case was handled. “The recent incident in Chicago involving actor Jussie Smollett is no different and has garnered national attention as the case has made its way through various phases of the investigation and prosecution process,” it said. “While details of the case remain sealed, several observations must be made in order to increase, not diminish, the public’s confidence in the criminal justice system.”

Ultimately, they advise that “when a chief prosecutor recuses him or herself, the recusal must apply to the entire office, not just the elected or appointed prosecutor;” “prosecutors should not take advice from politically connected friends of the accused;” “when a prosecutor seeks to resolve a case through diversion or some other alternative to prosecution, it should be done so with an acknowledgement of culpability on the part of the defendant. A case with the consequential effects of Mr. Smollett’s should not be resolved without a finding of guilt or innocence;” and “expunging Mr. Smollett’s record at this immediate stage is counter to transparency. Law enforcement will now not be able to acknowledge that Mr. Smollett was indicted and charged with these horrible crimes and the full record of what occurred will be forever hidden from public view.”

What evidence did the police say they had against Smollett?
During a press conference on February 21, Eddie Johnson, superintendent of the Chicago Police Department, said Smollett orchestrated and paid to stage the attack.

First, he said, Smollett attempted to gain attention by sending a false letter to himself. When that didn’t work, Smollett then paid $3,500 to two brothers, Olabinjo and Abimbola Osundairo, to stage the attack because, according to Johnson, Smollett “was dissatisfied with his salary” on the hit TV show Empire.

The two brothers Smollett allegedly hired, men he knew from working on Empire, were wearing gloves and punched the actor “a little bit,” Johnson said. He also said that phone records between Smollett and the two brothers show communication both before and after the staged attack.

Johnson also confirmed that the police had evidence of money payment in the form of the actual check Smollett paid the brothers. Smollett claimed the payment was for services rendered in the form of fitness training.

How did Chicago police come to the conclusion that Smollett orchestrated the attack?
Commander of the Chicago Police Department, Edward Wodnicki, outlined the timeline of the investigation during the February 21 press conference.
He said the investigation officially began at 2 a.m. on the morning of January 29, when Smollett first reported that he was the victim of a hate crime. The actor was initially interviewed at Northwestern Hospital.

“Jussie was not hurt,” said Wodnicki, other than a few scratches on his face and some bruising. He said it appeared that the scratches may have been self-inflicted.

The police interviewed more than 100 people in the area after the supposed attack.

“We quickly found two persons of interest on video that we believed were the likely offenders in this case,” said Wodnicki. About 35 different police cameras and 20 private-sector cameras were used to track the suspects. The two brothers seen in the video were eventually identified through a rideshare service they used to flee the scene.

On Friday, February 15, after 47 hours of the brothers being in custody, and hours of interrogation, they were no longer considered suspects in the case. Based on the evidence the brothers provided (including the payment from Smollett), the State Attorney’s Office approved charges against the actor.

Additionally, Smollett had been reluctant to meet with investigators for a follow-up interview. And while he has every legal right to not answer questions as per his attorney’s advice, some critics argued from the beginning that his story had holes in it, like the 40-minute gap between the supposed attack and when police were contacted.

Another red flag for investigators early on may have been when Smollett initially refused to turn his phone over to the police. At the time, the police were trying to establish a timeline of the attack based on Smollett’s own statement that he was speaking on the phone to his manager when the alleged attack happened. Though he eventually provided redacted phone records to investigators, it’s unclear if any of the phone records were edited. It appears that the phone records showing communication between Smollett and the brothers came from the brothers’ own phone records, which they handed over willingly.

The State’s Attorney’s Office would have reviewed all of this evidence before making the decision to drop all charges.

What happened after Smollett was charged?
Because Smollett was charged with making a false police report, a felony disorderly conduct charge that could bring jail time and/or monetary fines, he was booked by police and had a bond hearing on February 21.

During the hearing, Smollett faced a judge to officially make his plea. The judge granted a bond of which Smollett was required to pay $100,000 based on the defendant not being a danger to the community or a flight risk. (He paid 10 percent of that, as is standard.) He was also asked to surrender his passport.

How did Smollett respond after being arrested?
The Empire actor has maintained his innocence from the beginning of the investigation. On March 14, he pled not guilty to all charges and denied any involvement in fabricating the attack.

On the night of February 20, his lawyers released a statement saying, “Like any other citizen, Mr. Smollett enjoys the presumption of innocence, particularly when there has been an investigation like this one where information, both true and false, has been repeatedly leaked.”

They also added: “Given these circumstances, we intend to conduct a thorough investigation and to mount an aggressive defense.”

What is Smollett saying now?
Since the charges were dropped, Smollett spoke briefly outside the courthouse. He thanked his family and friends, the people of Chicago and around the world who supported him. He added:

I’ve been truthful and consistent on every single level since day one. … This has been an incredibly difficult time. Honestly, one of the worst of my entire life. But I am a man of faith and a man who has knowledge of my history and would not bring my family, our lives and the movement through a fire like this. I just wouldn’t.

He also signed autographs and said he would continue to “fight for the betterment of marginalized people everywhere.”

His attorneys also said in a statement, “He was a victim who was vilified and made to appear as a perpetrator as a result of false and inappropriate remarks made to the public, causing an inappropriate rush to judgment.”

The statement adds: “The entire situation is a reminder that there should never be an attempt to prove a case in the court of public opinion. That is wrong. It is a reminder that a victim, in this case, Jussie, deserves dignity and respect. Dismissal of charges against the victim in this case was the only just result.”

They said that Smollett is “relieved to have this situation behind him and is very much looking forward to getting back to focusing on his family, friends and career.”

Was Smollett facing jail time if was convicted?
Yes. The charge for filing a false police report is a felony in Illinois. Technically, it’s considered a Class 4 felony, the least serious of all possible felony charges, but it still carries a sentence ranging from one to three years in prison and fines up to $25,000.

In order to have charged Smollett, the investigators needed to prove to the grand jury that he knowingly lied to police about the incident, which resulted in a false police report. The actor could also have been forced to pay restitution for the cost of the investigation, which, given the high-profile nature of the case, could have been substantial.

As this case moved forward, prosecutors may also have been considered adding an obstruction of justice charge, which basically would have meant that Smollett would have stood accused of “knowingly” resisting or obstructing the work of an investigator. This could have also carried jail time.

The 16 additional charges that were added (and since dropped) each also carried up to four years in jail or probation.

At that point, one of the best-case scenarios for the actor could have been to plead to a misdemeanor to avoid prison time. But again, given the high-profile nature of the case, a judge may not have been be so lenient as to accept the plea. Smollett could have ended up facing a very public criminal trial. Even before he was formally charged, he hired two criminal-defense attorneys, Victor Henderson and Todd Pugh, who said they intend to vigorously defend their client against all charges.

What about the threatening letter Smollett says he received?
Johnson said during the original press conference on February 21 that the police believed Smollett did fabricate the letter. Both the FBI and U.S. Postal inspectors were investigating the letter, which said, “You will die black faggot,” in cut-out magazine letters. It also featured a stick figure hanging from a tree.

At this point it’s unclear if Smollett will face any charges for the letter. If charges are brought, Smollett could be charged with federal mail fraud, which carries its own set of criminal charges beyond what he was facing in the state of Illinois. To be convicted of mail fraud, a prosecutor would need to prove that the actor intended to perform a fraudulent act and that he used the mail purposely to execute it.

Charges for being convicted of mail fraud range from fines up to $250,000 to prison time up to 20 years. Other lesser options include probation or even making restitution. The penalty really depends on the severity of the case and the criminal history of the person or persons involved.

What happens when someone is charged with a felony?
A felony remains on a person’s criminal record for the duration of his life. It may preclude him from certain things, like being able to vote or even run for and hold political office. Felons are also disqualified from jury duty for at least seven years. Felons are also unable to own firearms.

In addition, felons risk losing permits or licenses for work depending on the nature of the crime. As a convicted felon, Smollett could have also been denied approval as a foster or adoptive parent. Landlords can even evict a tenant who is deemed dangerous to the residential community, but even if the case would have proceeded and a trial found Smollett guilty, prosecutors would have been hard-pressed to prove that Smollett was a danger to the community.

Bottom line, if Smollett would have been convicted of these felony charges, he would have very likely served jail time, paid fines, or be put on probation. It would have ultimately depended on a judge’s discretion and the seriousness of the charges.

Has Smollett had any other trouble with the law?
In 2007, Smollett pleaded no contest to three misdemeanor counts related to a DUI in Los Angeles. One of the counts was, interestingly, giving false information to the police.

The actor reportedly gave police a false name when he was arrested, that of his brother Jake. As such, he was charged with false impersonation, as well as driving under the influence and driving without a license. He was sentenced to three years’ probation. He also completed a mandatory alcohol-treatment program.

What happens to Smollett now?
It’s unclear if his bosses at Empire who initially “removed” the actor’s character Jamal at the end of the new season will rehire him. Chris Alexander, a spokesperson for 20th Century Fox Television and the Fox Network that produces the hit show, said in a statement, “Jussie Smollett has always maintained his innocence and we are gratified that all charges against him have been dismissed.”

There’s no word on whether the State’s Attorney’s Office will reveal any more about why they dropped the charges. But the two brothers who said they helped to stage the attack against Smollett said just this week that they feel “betrayed” by the actor.

“I believe my clients were betrayed,” the brothers’ attorney Gloria Schmidt said on CNN on Monday, March 25. “They feel regretful that they put their trust in the wrong person.”

The next thing to watch for will be if Smollett’s attorneys file a wrongful suit against Chicago.

March 26: This piece has been updated throughout to incorporate new information about the charges against Smollett being dropped.

March 29: This piece has been updated to include new statements made in response to the charges being dropped.

Questions About Jussie Smollett’s Dropped Charges, Answered