By DON BABWIN and SARA BURNETT Associated Press
CHICAGO (AP) — The jury in Jussie Smollett’s trial started deliberating Wednesday, after a prosecutor said there is “overwhelming evidence” that the former “Empire” actor lied to police about being the victim of an anti-gay, racist attack and his defense attorney said the charges are based on lies.
The deliberations began after a roughly one-week trial in which two brothers testified that Smollett recruited them to fake the attack near his home in downtown Chicago in January 2019. They said Smollett, who is Black and gay, orchestrated the hoax, telling them to put a noose around his neck, yell racist and homophobic slurs and rough him up in view of a surveillance camera, and that he said he wanted video of the hoax made public via social media.
Smollett testified that he was the victim of a real hate crime, telling jurors “there was no hoax. “ He called the brothers “liars” and said the $3,500 check he wrote them was for meal and workout plans. His attorneys argued that the brothers attacked the actor because they are homophobic and that they made up the story about the attack being staged but said they wouldn’t testify against Smollett if he paid them each $1 million.
In his closing argument Wednesday, special prosecutor Dan Webb told the jury that what Smollett did caused Chicago police to spend enormous resources investigating an alleged crime that turned out to be fake. Smollett, who is Black and gay, told police someone put a noose around his neck and yelled racist and homophobic slurs.
“Besides being against the law, it is just plain wrong to outright denigrate something as serious as a real hate crime and then make sure it involved words and symbols that have such historical significance in our country,” Webb said.
He also accused Smollett of lying to jurors, saying surveillance video from before the alleged attack and that night contradicts key moments of Smollett’s testimony.
“At the end of the day, he lacks any credibility whatsoever,” Webb said.
Defense attorney Nenye Uche said in his closing argument that the brothers are “sophisticated liars,” adding that during testimony last week one of the brothers “said ‘I don’t recall’ so many times, it is ridiculous.”
“The entire prosecution’s case, including the foundation of the case, is built like a house of cards,” Uche said.
Taking the witness stand this week, Smollett repeatedly denied the attack was a fake. He described how he was the victim of a hate crime while walking in his neighborhood early on Jan. 29, 2019.
Smollett testified that he was returning home from buying a sandwich around 2 a.m. when someone yelled a racist, homophobic remark that referenced the TV show “Empire.” The person also shouted something about “MAGA country,” an apparent reference to then-President Donald Trump’s slogan “Make America Great Again.” The slogan also had been scrawled on some hate mail, featuring a drawing of a stick figure hanging by a noose, that Smollett had received at the “Empire” set, he testified.
Smollett said when he turned to confront the person, a man hit him in the head and he fell to the ground, where he said another man kicked him before the attackers ran away. Smollett said he noticed a rope, like a noose, around his neck after the attack. When he returned home, a friend called Chicago police, something Smollett said he wouldn’t have done because as a Black man he doesn’t trust police.
Uche told the jury that one of the brothers, Olabingo Osundairo, posted homophobic slurs on social media. He also recalled that Abimbola Osundairo testified he went to a bathhouse with Smollett but denied any sexual relationship. Smollett later testified that the men performed sex acts together at the bathhouse. Uche suggested suggested Olabingo’s homophobia and Abimbola’s “self-hatred” were motives for their attack.
Another possible motive, Uche said, was that Abimbola Osundairo wanted to be hired as Smollett’s security.
“These guys want to make money,” he said.
Webb said Smollett lied when he testified that he picked up the Osundairo brothers a few days before the alleged attack so they could work out, rather than to do a “dry run” of the fake attack, as the brothers told jurors last week. In surveillance video, the men are seen driving around Smollett’s apartment building three times, but Smollett never parked his car to go workout.
The brothers testified that Smollett pointed out a surveillance camera near the intersection that would record the fake attack, so it could be publicized on social media. But Smollett testified Tuesday that it wasn’t unusual for him to drive around in circles, and that he canceled the plan to work out because he didn’t want to work out with Olabingo Osundairo, whom he hadn’t invited along.
Uche told jurors that Smollett often drove around smoking marijuana and making music, and he questioned why prosecutors didn’t obtain surveillance video of him doing so.
“They don’t want to do it because it would show you it wasn’t a dry run,” Uche said.
Webb also referenced surveillance video that shows the Osundairo brothers walking around the area the night of the alleged attack. Webb questioned how the brothers — who didn’t live nearby — would know to be in the area around 2 a.m. during freezing cold weather for the fake attack.
“They knew where he was going to be because Smollett told them where he was going to be,” Webb said.
But Uche said the brothers testified they arrived 40 minutes early, adding “they were casing him.”
Webb also questioned why Smollett didn’t turn over his cellphone to police or give them a DNA sample or access to his medical records to help with the investigation. Smollett testified he doesn’t trust Chicago police, and that he was concerned about his privacy.
“If he was a true victim of a crime he would not be withholding evidence,” Webb said.
Uche called it “nonsense” for Chicago police to ask Smollett for his DNA when he was still considered a victim of a crime. He noted Smollett later provided DNA to the FBI for a separate investigation into hate mail he had received at the “Empire” studio shortly before the alleged attack.
“He wasn’t hiding anything,” Uche said.
The disorderly conduct charge is a class 4 felony that carries a prison sentence of up to three years, but experts have said if Smollett is convicted, he would likely be placed on probation and ordered to perform community service.