Analyzing the Grounds for Jussie Smollett Appeal
The Illinois Supreme Court held that a second prosecution violated due process because the State had dismissed the original charges as part of an agreement that Smollett had already performed.
People v. Smollett involved a highly publicized prosecution arising from Jussie Smollett’s January 2019 report to Chicago police that he had been the victim of a racist and homophobic attack. Smollett was initially indicted on 16 counts of felony disorderly conduct. The Cook County State’s Attorney’s Office later dismissed those charges by nolle prosequi after Smollett completed community service and forfeited his $10,000 bond. A special prosecutor was subsequently appointed, and Smollett was reindicted on six counts. A jury convicted him on five counts and he was sentenced to probation, jail time, a fine, and restitution. The Illinois Supreme Court later reversed that conviction and directed the circuit court to enter a judgment of dismissal.
Case Update
Case: People v. Smollett, 2024 IL 130431
Court: Supreme Court of Illinois
Decision: November 21, 2024
Result: Conviction reversed and case remanded with directions to enter a judgment of dismissal.
What Happened in the Original Smollett Case?
In January 2019, Smollett reported to Chicago police that two men had attacked him while shouting racist and homophobic slurs. Police investigated the report and eventually arrested Smollett after investigators concluded that the attack had been staged.
At the later criminal trial, prosecutors presented testimony from Ola and Bola Osundairo, along with text messages, telephone and GPS evidence, surveillance video, receipts, and other evidence. Smollett testified in his own defense and denied that he had arranged a staged attack.
A grand jury ultimately indicted Smollett on 16 counts of felony disorderly conduct under 720 ILCS 5/26-1 based on allegations that he had falsely reported the incident to police.
Initial Indictment
A grand jury indicted Smollett on 16 counts of felony disorderly conduct.
Dismissal
The Cook County State’s Attorney’s Office dismissed the charges after Smollett completed community service and forfeited his bond.
Second Prosecution
A special prosecutor later obtained a new indictment charging six counts of felony disorderly conduct.
Conviction
A jury convicted Smollett on five counts before the Illinois Supreme Court ultimately reversed the conviction.
Why Were the Original Charges Dismissed?
On March 26, 2019, the Cook County State’s Attorney’s Office moved to nolle prosequi the 16-count indictment. In open court, an assistant state’s attorney stated that the decision was based in part on Smollett’s volunteer service and his agreement to forfeit his bond to the City of Chicago.
The trial court granted the motion and ordered Smollett’s $10,000 bond released to the City of Chicago.
The later investigation by the special prosecutor described the disposition as an agreement under which Smollett would complete 15 hours of community service and forfeit his bond while the State dismissed the felony charges. The Illinois Supreme Court ultimately agreed that those were the basic terms of the agreement.
The Agreement Became the Central Issue
The Supreme Court did not decide the case by determining whether the original charges were factually justified. Instead, it examined whether the State could later prosecute Smollett after accepting his performance under the earlier agreement.
Why Was a Special Prosecutor Appointed?
After the original charges were dismissed, a retired appellate court justice filed a petition seeking the appointment of a special prosecutor. The petition raised questions about the way the Cook County State’s Attorney’s Office had resolved the case and the circumstances surrounding the recusal of the State’s Attorney.
Judge Michael Toomin appointed Dan K. Webb as special prosecutor and authorized him to investigate the handling of the case and, if reasonable grounds existed, to pursue further prosecution.
A special grand jury later indicted Smollett on six counts of felony disorderly conduct. The second prosecution proceeded in Cook County circuit court.
The Second Indictment
The second indictment charged six counts rather than the 16 counts contained in the original indictment. Smollett pleaded not guilty and challenged the new prosecution on several grounds, including double jeopardy and due process.
What Happened at the Second Trial?
At the second trial, the prosecution presented evidence that it alleged showed Smollett had arranged a staged attack and had then falsely reported the incident to police.
The Osundairo brothers testified that they participated in the staged attack. The State also introduced text messages, GPS information, surveillance video, receipts for items allegedly used during the incident, and a $3,500 check from Smollett to Bola Osundairo.
Smollett testified and denied arranging a staged attack. The jury ultimately found him guilty on five counts of felony disorderly conduct.
The jury convicted Smollett on five counts of felony disorderly conduct.
What Sentence Did Smollett Receive?
The trial court sentenced Smollett to 30 months of probation, with the first 150 days to be served in the Cook County Jail. The court also imposed a $25,000 fine and ordered Smollett to pay $120,106 in restitution to the City of Chicago.
The Illinois Appellate Court later concluded that the sentence fell within the statutory sentencing framework for a Class 4 felony and found no abuse of discretion. The Illinois Supreme Court subsequently reversed the conviction on other grounds and directed dismissal of the case.
Probation
30 months of probation, including 150 days in the Cook County Jail.
Fine
A $25,000 fine was imposed.
Restitution
The trial court ordered $120,106 in restitution to the City of Chicago.
What Issues Did Smollett Raise on Appeal?
Smollett challenged many aspects of the second prosecution. Among other arguments, he challenged the appointment and authority of the special prosecutor, the second indictment on double-jeopardy grounds, the exclusion of a potential juror based on sexual orientation, the racial composition of the jury, comments made by the trial judge during cross-examination, and the sentence imposed by the circuit court.
The First District Appellate Court rejected those arguments in its December 1, 2023 decision. The Illinois Supreme Court later granted leave to appeal and ultimately resolved the case on a different issue: whether the State violated due process by bringing a second prosecution after the parties had entered and performed an agreement resolving the original case.
The 2024 Supreme Court Decision Narrowed the Case
The Illinois Supreme Court stated that it was addressing the State’s responsibility to honor its agreement with Smollett. Because that issue resolved the case, the Supreme Court did not need to decide the remaining constitutional claims raised in the earlier appeal.
What Is Double Jeopardy?
The Double Jeopardy Clause of the Fifth Amendment generally protects a person from being prosecuted or punished twice for the same offense after jeopardy has attached. Illinois’ Constitution contains a similar protection.
Smollett argued that the second prosecution was barred by double jeopardy because the State had already prosecuted him on the original indictment. The First District rejected that argument in 2023, concluding that the first case had been dismissed before trial and that jeopardy had not attached in the way required to bar the later prosecution.
The Illinois Supreme Court ultimately did not base its decision on double jeopardy. Instead, it held that the second prosecution violated due process because the State had entered into an agreement with Smollett and he had performed his part of the bargain.
Double Jeopardy and Due Process Are Different
The Supreme Court’s decision was not a ruling that every dismissal by nolle prosequi permanently prevents a later prosecution. Instead, the Court held that when a dismissal is entered as part of a bilateral agreement and the defendant performs the agreed terms, the State must honor that agreement.
Why Was the 2019 Agreement So Important?
The Illinois Supreme Court examined the statements made in court when the original charges were dismissed. The assistant state’s attorney expressly referred to Smollett’s volunteer service and agreement to forfeit his bond when asking the court to nolle prosequi the case.
The Court also relied on the record showing that Smollett completed 15 hours of community service and forfeited his $10,000 bond.
The Supreme Court concluded that the parties intended those actions to be exchanged for dismissal of the criminal charges. The Court found that the State received the benefit of Smollett’s performance and therefore could not later disregard the agreement and prosecute him again on the same underlying conduct.
The State Made the Agreement
The prosecution agreed to dismiss the criminal charges in exchange for specified actions by Smollett.
Smollett Performed
He completed the agreed community service and forfeited his bond.
The State Had to Honor the Bargain
The Supreme Court held that due process prevented the State from receiving Smollett’s performance and then prosecuting him again.
What Did the Illinois Supreme Court Decide?
On November 21, 2024, the Illinois Supreme Court reversed both the First District Appellate Court’s judgment and the circuit court’s judgment.
The Court held that the State’s second prosecution violated due process because the original dismissal was part of a bilateral agreement between Smollett and the Cook County State’s Attorney’s Office, and Smollett had fully performed his part of that agreement.
The Supreme Court therefore remanded the case with directions for the circuit court to enter a judgment of dismissal.
The case was remanded with directions to enter a judgment dismissing the prosecution.
What About the Gay Juror Argument?
Smollett also argued that the prosecution improperly excluded a prospective juror because the juror identified as gay.
Illinois law prohibits excluding potential jurors because of sexual orientation. Section 2(b) of the Jury Act incorporates sexual orientation into the protections against discriminatory jury selection.
The First District acknowledged that sexual orientation is a protected category for jury selection purposes. However, the court concluded that Smollett had not established a prima facie case of discrimination because he primarily pointed to the prospective juror’s sexual orientation without presenting enough additional evidence to support an inference of discriminatory intent.
Important Legal Point
A party cannot establish unlawful jury discrimination simply by identifying the race, ethnicity, or sexual orientation of a struck juror. The party must make the showing required by the applicable jury-selection constitutional doctrine.
What About the Race of the Jury?
Smollett also challenged the prosecution’s use of peremptory challenges based on race. The First District analyzed those claims under Batson v. Kentucky and related Illinois law.
The appellate court concluded that Smollett did not establish the required prima facie showing that the State had engaged in purposeful racial discrimination during jury selection.
Although the jury’s demographic composition was discussed during the appeal, the First District did not find that the record established a constitutional violation.
Did the Trial Judge Make Improper Comments?
Smollett argued that the trial judge made comments during cross-examination that improperly influenced the jury and interfered with his defense.
One exchange involved defense counsel’s questions about the Chicago police investigation and an investigator’s reference to Smollett’s “pretty face.” The trial judge instructed counsel to move on and at one point responded, “So what?” to a question involving that testimony.
The court also made several other comments directing defense counsel to ask questions rather than argue with witnesses or the prosecution during cross-examination.
How Did the First District Rule?
The First District reviewed the challenged comments in the context of the entire trial and concluded that Smollett had not shown that the comments denied him a fair trial. The appellate court noted that the judge also instructed the jury not to consider the lawyers’ or court’s comments and to focus on the evidence.
Was Smollett’s Sentence Excessive?
Smollett argued that his sentence was excessive. The First District rejected that argument.
The court explained that felony disorderly conduct under the statute was a Class 4 felony. At the time of the offense, a Class 4 felony carried a prison range of one to three years, while probation was also available under the statute.
The trial court imposed 30 months of probation, with the first 150 days served in jail, along with a $25,000 fine and $120,106 in restitution. The First District found no abuse of discretion in the sentence.
Probation
30 months of probation, including 150 days in jail.
Fine
$25,000 fine.
Restitution
$120,106 ordered to be paid to the City of Chicago.
Why the Supreme Court’s Decision Was About Due Process
The most important distinction in People v. Smollett is between a general rule concerning nolle prosequi and the constitutional requirement that the State honor an agreement it has made with a defendant.
Ordinarily, a nolle prosequi is not necessarily a final disposition that prevents the State from reprosecuting a defendant. The Illinois Supreme Court recognized that general rule.
The Court nevertheless held that the ordinary rule did not control because the dismissal in Smollett’s case was part of a bilateral agreement. Smollett performed his side of the agreement by completing community service and forfeiting his bond. The State had received the benefit of his performance.
The Supreme Court’s Core Holding
Once the State entered into the agreement, accepted Smollett’s performance, and obtained the benefit of his side of the bargain, the State could not later disregard that agreement and prosecute him again for the same underlying conduct without violating due process.
What Is the Final Result in People v. Smollett?
The original 16-count indictment was dismissed by nolle prosequi after Smollett completed community service and forfeited his bond.
A special prosecutor obtained a new indictment charging six counts of felony disorderly conduct.
A jury convicted Smollett on five counts.
The Illinois Appellate Court, First District, affirmed the convictions and sentence.
The Illinois Supreme Court reversed the appellate and circuit court judgments and remanded with directions to enter a judgment of dismissal.
The Illinois Supreme Court directed the circuit court to enter a judgment dismissing the case.
What Does People v. Smollett Mean for Criminal Defendants?
People v. Smollett demonstrates that the government’s agreements with criminal defendants can have constitutional significance. When a defendant performs his or her side of a negotiated resolution and the State receives the agreed benefit, the State may be required to honor the agreement.
The decision is also a reminder that a dismissal by nolle prosequi and a negotiated resolution are not necessarily the same thing. The legal consequences can depend on the circumstances surrounding the dismissal and the parties’ agreement.
For defendants, the case also illustrates why the exact terms of a negotiated criminal resolution can matter. Statements made in open court, written agreements, payments, community service, and other acts of performance may become important evidence if the State later attempts to prosecute the same conduct again.
Talk to a Champaign, IL Criminal Defense Lawyer
Criminal cases can involve complicated questions about plea agreements, dismissals, double jeopardy, due process, jury selection, prosecutorial conduct, sentencing, and constitutional rights. The legal issues available to a defendant depend on what happened in the specific case and what was preserved in the record.
Patel Law, PC represents Illinois residents facing criminal charges and seeking to protect their constitutional rights. Our Champaign criminal lawyers can review your case, explain the potential legal issues, and discuss the available options.
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