When officers came to see Jussie Smollett after he was attacked, they found him still wearing the rope he said his assailants had thrown around his neck. Photo / Chicago Police via The New York Times
A special prosecutor will be appointed to take another look at the allegations that the actor staged a hate crime. Here's what we know already.
The Jussie Smollett case has been given a new life.
Five months ago, the Empire actor told police he was the victim of a racist and homophobic attack in downtown Chicago, eliciting a wave of indignation from politicians and celebrities. The police conclusion was even more shocking: that Smollett had paid two acquaintances to stage the assault. Then, just a month after he was arrested, prosecutors abruptly dropped the charges.
That seemed to put the case to rest, but in the latest twist, a judge has ordered that a special prosecutor review how the Cook County State's Attorney's Office handled the case, and if necessary, to reopen the prosecution of Smollett. With the fresh scrutiny, the politically charged debate over the case is likely to continue for months.
In response to public records requests, the Chicago Police Department and the state's attorney's office have released tens of thousands of documents and many hours of security camera footage related to the case. The special prosecutor, who has yet to be named, will use that trove of information in deciding whether to prosecute Smollett, 37, or hold anyone else to account.
Here's what we know from those records.
Abimbola Osundairo and Olabinjo Osundairo, the brothers at the centre of the Smollett saga, told police that the actor, who is black and gay, had paid them US$3,500 to orchestrate the attack, directing them to shout specific racist and homophobic epithets at him and place a noose over his neck. Smollett maintains his innocence, and his lawyers have said that any communications he had with the brothers, and any payment, had to do with a fitness regimen they were putting him through.
In a cache of text messages released last week, Smollett can be seen texting with Abimbola Osundairo — a fitness trainer who also had appeared on Empire — about training and buying drugs. One text in particular got the investigators' attention: On January 25, four days before the attack, Smollett sent a message to Osundairo saying: "Might need your help on the low. You around to meet up and talk face to face?"
The brothers told police that Smollett had picked them up in his car later that day and that while they drove around the neighbourhood, he proposed they help him stage the attack, according to a detective's report. One clip from security camera footage shows Smollett's black Mercedes pulling up in an alley behind one of the brothers' homes that afternoon.
The brothers told police that Smollett picked them up again January 27 and drove them around downtown Chicago to plan the details of the attack.
According to a search warrant, police obtained phone records showing that one of the brothers called Smollett around 1am January 29. About an hour later, they approached him near the building where he was staying. The brothers told detectives they had yelled racial and homophobic slurs at Smollett, began hitting him while trying not to hurt him badly, poured bleach on him that they had put in a hot sauce bottle (the original plan was to use gasoline), threw a rope around Smollett's neck, and then ran away.
Various surveillance cameras captured their flight. One recorded them running past a building near the attack.
Smollett, meanwhile, entered his building, and a short while later, his creative director, Frank Gatson, whom he had told of the attack, called 911 to report it.
Police body-camera footage showed the moment officers entered Smollett's apartment and encountered him, with a white rope around his neck. He told them he had kept the rope on because, he said, "I just wanted y'all to see." He eventually told police about the attack, saying that although his assailants wore masks, he could tell that one of his attackers was white.
Eddie Johnson, the police superintendent, said after Smollett's arrest that one of the Osundairo brothers had spoken with the actor on the phone about an hour after the attack. But the search warrant records show their next phone call was actually about 18 hours later. (A police spokesman, Anthony Guglielmi, said last week that the superintendent had misspoken.)
After the brothers were arrested, they admitted to detectives that they were the attackers — but said that Smollett had paid them to do it.
In general, police documents describe the evidence police used to conclude that Smollett staged the attack, but they don't contain a smoking gun that unequivocally confirms the brothers' account. There are no recordings or text messages in which Smollett discusses plans for an attack.
Tina Glandian, one of his lawyers, said that when Smollett asked Abimbola Osundairo for help "on the low," he was asking for help getting herbal steroids — which she said are illegal in the United States but not in Nigeria — so that Smollett could lose weight before a music video shoot. The brothers, who have family in Nigeria, made a trip there soon after the attack.
Glandian said that the meetings between the brothers and Smollett on January 25 and January 27 were related to obtaining the steroids and that the phone calls had to do with scheduling training sessions. She noted that police had found in the brothers' digital records evidence that one of them had been looking up information on the steroids.
She added that Abimbola Osundairo sent a text to Smollett about 16 hours after the attack, saying that he was "praying for a speedy recovery."
"This text alone shows that this was not a hoax," Glandian said.
Some text messages found in a search of Olabinjo Osundairo's phone records showed him making homophobic comments — evidence that Smollett's lawyers would likely have used to argue that Osundairo had a reason to try to hurt Smollett.
A lawyer for the brothers, Gregory Kulis, declined to address specific comments made by his clients, saying that the evidence in the case pointed to the attack being a hoax. The brothers have sued Smollett's legal team, claiming that the lawyers defamed the brothers by, among other things, saying they sold illicit steroids.
Foxx is the top official in the state's attorney's office and would normally have been in charge of prosecuting Smollett. But a week before Smollett was arrested, the office released a statement saying Foxx was separating herself from the case.
Early in the investigation, when Smollett was still considered a victim, Foxx had communicated with Smollett's representatives, who were hoping that the FBI could take over the case from the Police Department. Text messages released by the state's attorney's office showed Foxx trying to help.
But as it became clear that Smollett could be a suspect, Foxx tapped her deputy at the state's attorney's office to handle the case. Some in her office objected to that decision, arguing that Foxx should have moved the case out of her office entirely. A veteran lawyer in her office provided an opinion saying that she could not simply hand the case to her deputy.
Text messages with different colleagues showed Foxx expressing that she felt her office was treating Smollett too harshly, noting that he was facing more counts than R. Kelly, whom the office is prosecuting on sexual assault charges. (Kelly has pleaded not guilty.) But there has been no evidence to date that Foxx, who is up for reelection in 2020, pushed her subordinates to drop the charges.
Citing state law, a judge ruled June 21 that Foxx should have asked the court to appoint a special prosecutor.
One set of documents released by the state's attorney's office suggested that prosecutors were thinking of settling Smollett's charges only days after he was indicted. But it was not clear whether they were trying to extract a guilty plea or perhaps reach an agreement where Smollett would admit wrongdoing and pay a fine but serve no time, a common arrangement for someone without a previous felony record.
By late March, the office had agreed to a plan where Smollett would do some community service and forfeit the US$10,000 bond paid for his release, in exchange for the office dropping the charges, with no admission of guilt. One email between a lawyer for Smollett and prosecutors discussed the agreement.
Foxx's office said publicly that it had dropped the charges because Smollett was not a threat to public safety and because he had a record of service to the community. In an op-ed in The Chicago Tribune, Foxx wrote that there "were specific aspects of the evidence and testimony presented to the office that would have made securing a conviction against Smollett uncertain," without elaborating. Some of the correspondence that could shed light on prosecutors' thinking remains sealed under a state law that protects their internal deliberations from public release.
Some city officials, including the police superintendent, were angry that prosecutors dropped the charges and adamant that Smollett should pay more, given the many hours of detective work expended on the case. The city of Chicago, which oversees the Police Department but not the state's attorney's office, has filed a lawsuit against Smollett, demanding more than $130,000. Now, the defense team faces the possibility that the special prosecutor could revive the criminal case against Smollett.
Written by: Julia Jacobs
© 2019 THE NEW YORK TIMES
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