Appeals court to rule if Jussie Smollett should stay in jail

Posted at 2:26 PM, March 16, 2022 and last updated 7:06 PM, May 18, 2023

By DON BABWIN Associated Press

CHICAGO (AP) — Jussie Smollett’s attorneys say they’re planning to appeal nearly everything that went on in court over the last few months — from the actor’s December conviction of lying to police to the 150-day sentence a judge imposed last week. And they want the actor to be released from jail immediately rather than wait for the outcome.


Now, the issue of whether Smollett must sit in jail during these planned appeals is before a state appeals court and while the appeals could take months to resolve, the question of whether Smollett remains locked up will be resolved much quicker.

That’s because Smollett’s attorneys have asked in a motion to the First District Court of Appeals to suspend the jail sentence and allow Smollett to post bond so that he can be out of custody during the appeal process. And they asked the court to postpone Smollett’s ordered payment of $140,000 in fines and restitution that Cook County Judge James Linn ordered as part of his sentence.

This booking photo provided by the Cook County Sheriff’s Office shows Jussie Smollett. A judge sentenced Jussie Smollett to 150 days in jail Thursday, March 10, 2022, branding the Black and gay actor a charlatan for staging a hate crime against himself while the nation struggled with wrenching issues of racial injustice. (Cook County Sheriff’s Office via AP)

The way Smollett’s attorneys see it, such an order is justified because it’s almost certain that Smollett would complete his 150-day jail sentence — which could shrink to 75 days if he behaves himself in jail — before the appeals on the conviction and sentence are decided. They also say it’s important that Smollett be released because they are worried about his mental health if he remains in protective custody in jail and are concerned that he could be attacked by other inmates.

In an interview with The Associated Press, David Erickson, a former state appellate judge who teaches at Chicago Kent College of Law, explained what happens next.

First off, the court has to hear from special prosecutor Dan Webb. Webb was given until Wednesday to respond to the motion filed by Smollett’s legal team, led by attorney Nene Uche. When that happens, the appeal will go before one justice.

That one justice, Erickson said, can end things right there.

“If the one judge rejects the motion, that’s it,” Erickson said. “It means the court is not going to hear it.”

It also means the attorneys will receive nothing but a short and pointed notice that the motion has been rejected. There likely won’t be any reason given or a statement of any kind.

Nor will the attorneys get to stand before the judge and make their case. The only thing the judge will use are the papers that the attorneys have filed.

But that first justice can keep things going, if he or she believes the motion has some validity. Then, the justice takes the motion to two other justices to review. The justices could call the attorneys in to make oral arguments but they can also just rely on the papers the attorneys have filed.

Two of the three justices must agree to grant the motion. If they do, the attorneys will be notified that the motion has been granted. This time, Erickson said, they will explain their reasoning.

If that happens, the appeals court can set Smollett’s bond or send the case back to Linn to set the bond. And with that, Smollett can walk out of jail.

Actor Jussie Smollett speaks to Judge James Linn after his sentence is read at the Leighton Criminal Court Building, Thursday, March 10, 2022, in Chicago. Smollett maintained his innocence during his sentencing hearing Thursday after a judge sentenced the former “Empire” actor to 150 days in jail for lying to police about a racist and homophobic attack that he orchestrated himself. (Brian Cassella/Chicago Tribune via AP, Pool)

Just what arguments will sway the justices is, of course, unclear. But Erickson said what is clear is that the argument that Smollett will complete his sentence before his appeal is decided is a non-starter.

“That’s not a legal argument and the appellate court is limited to looking at legal errors only,” he said, adding that while motions such as the ones Smollett’s legal team filed are common, they are not often granted.

Erickson said the fact that the judge talked for well over a half hour in sentencing Smollett suggested that he anticipated that the sentence would be appealed.

“The standard that they (Smollett’s attorneys) have to show is whether or not the judge abused his discretion in his sentence,” he said. And by speaking as long as he did and addressing his reasoning as specifically as he did, “He (Linn) was going to make sure that the (appeals court) understands why he did what he did and that he did not abuse his discretion.”

A rejection could come in a matter of hours or a day and if the justices want to hear more it could take a few days or maybe a week to reach a decision. But Erickson said these things are routinely decided very quickly.

“They could (rule) immediately or overnight or (in) a week,” said Erickson.