Best Chicago Criminal Attorney Michael Leonard Analyzes Smollett Appellate Court Decision. Last week, the Illinois Appellate Court (First District) issued its long-awaited Opinion in the Jussie Smollett (“Smollett”) case. The case citation is People v. Smollett, 2023 IL App (1st) 220322 (Dec. 1, 2023).
As most readers know, Smollett was convicted of disorderly conduct after perpetrating a scheme that involved a staged “attack” upon him in downtown Chicago in the middle of the night. The case garnered national and international attention in light of Smollett’s fame, its alleged “MAGA” aspects, and its racial undertones. Smollett’s conviction also came about after a series of highly unusual and controversial circumstances.
Those circumstances included the Cook County State’s Attorney’s Office initially dismissing the charges; the filing of an intervention action by a former Judge urging the trial court to appoint a Special Prosecutor; the appointment of a Special Prosecutor; the subsequent return of an Indictment by a Grand Jury; and a highly publicized trial of what were only misdemeanor charges.
In affirming Smollett’s conviction, the Appellate Court first held that that Smollett had waived the issue of his challenge to the appointment of the Special Prosecutor by way of his failure to timely appeal that appointment.
Next, the Appellate Court rejected Smollett’s appeal of the trial court’s denial of his Motion to Dismiss the Indictment on Double Jeopardy grounds. Smollett argued that the State breached an “immunity type non-prosecution agreement” by reindicting him, purportedly in violation of “his ‘right not to be hauled into court’ on the same charges.” However, the Appellate Court found that the State’s Attorney’s Office’s initial “nolle pros” (dismissall) of the charges against Smollett did not constitute a final disposition of the case. Thus, that type of dismissal did not bar “another prosecution for the same offense.” The Appellate Court explained that a “nolle prosequi is not an acquittal” but rather is analogous to the “discontinuance in a civil suit,” leaving “the matter in the same condition in which it was before the commencement of the prosecution.”
Furthermore, the Appellate Court held that “jeopardy never attached,” and accordingly Smollett had no colorable “Double Jeopardy” argument. The Court explained that the protections against “double jeopardy are triggered only after an individual has been subjected to the hazards of trial and possible conviction. In a jury trial, jeopardy attaches when the jury is impaneled and sworn. In a bench trial, jeopardy attaches upon the first witness being sworn in and the trial court beginning to hear evidence.” Because none of those circumstances had occurred, the Appellate Court held that jeopardy never attached.
The Appellate Court next addressed, and rejected, Smollett’s contention that the trial court erred by limiting his lead defense counsel from cross-examining certain witnesses at trial – i.e., the two brothers who were involved in the stage “attack” and who testified at trial. That issue arose prior to trial because Smollett’s trial counsel had interviewed those two individuals. The Appellate Court found that the trial court’s limitation on that particular counsel’s ability to cross-examine those witnesses at trial – instead of outright disqualifying that counsel – was appropriate under the circumstances.
In affirming Smollett’s conviction, the Appellate Court also rejected a myriad of other issues raised, including an alleged discovery violation; an attack upon the “Covid’ restrictions that were imposed during jury selection; the denial of a Batson motion; objections to the trial court’s comments during cross-examination; alleged “witness pressure;” the State’s alleged improper closing; and the length of his sentence and restituion order.
It seems without doubt that these issues will be addressed by the Illinois Supreme Court – in the event that Smollett seeks leave to appeal to that court.
Michael Leonard
Leonard Trial Lawyers
December 4, 2023