CHICAGO (Court TV) — Actor Jussie Smollett may be heading back behind bars after an appeals court failed to see his side and upheld his conviction on disorderly conduct charges.
Smollett spent six nights in jail before his release pending his appeal of a conviction for lying to the police about a racist and homophobic attack. Smollett was sentenced to a total of 150 days in jail after a jury found him guilty of five felony counts of disorderly conduct for lying to the police.
A panel in Illinois’ appeals court ruled 2-1 that the conviction should stand.
The strange saga began in January 2019, when Smollett told police that he was the victim of a racist and homophobic attack by two men in ski masks. A police investigation revealed that the men in ski masks were not only known to Smollett but had been hired by him to stage the attack.
Smollett maintained his innocence throughout the trial and took the stand to testify in his own defense. At sentencing, he again proclaimed his innocence and said, “I am not suicidal. And if anything happens to me when I go in there, I did not do it to myself. And you must all know that.”
At the heart of Smollett’s appeal was a question about the special prosecutor’s authority and whether he should have been prosecuted after entering into what he described as a “nonprosecution agreement” with investigators, paying a fine and performing community service.
But the court found that Smollett never entered into a nonprosecution agreement and instead, the record shows that the community service was performed in exchange for a nolle prosequi, which does not prohibit another prosecution for the same crime.
“12 days after Smollett’s first arraignment, the State nol-prossed his case. 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.”
Justice Freddrenna Lyle issued a dissenting opinion, saying there is no legal or factual support to the idea that a nolle prosequi would not offer the protection of double jeopardy or constitute the same kind of agreement as a plea agreement.
Because Smollett’s release on bond was contingent on his appeal, it is likely that he will now be returned to jail to serve the remainder of his sentence.