The actor, who is Black and gay, told Chicago police that on a frigid night in January 2019 two unknown men attacked him, yelled racist and homophobic slurs at him, poured bleach on him and wrapped a noose around his neck.
Smollett maintained his innocence under oath during the trial, but the jury convicted him on five of six felony charges after nine hours of deliberations.
A disorderly conduct charge for a false crime report is a class 4 felony in Illinois, each punishable by up to three years in prison and a $25,000 fine.
Cook County Judge James Linn has discretion in imposing a concurrent or consecutive sentence for each of the five counts. He is allowed to sentence Smollett to probation, conditional discharge, community service, restitution or a combination. Conditional discharge is a release with stipulations but without probational supervision.
At the hearing Thursday afternoon, Smollett attorney Tina Glandian argued that the guilty verdict should be overturned and a new trial granted based on legal errors leading up to and during the trial. Sean Wieber, deputy special prosecutor, said in response that her arguments were “meritless” and that the conviction should stand.
Judge Linn denied the defense’s request.
“I stand by my findings and rulings. I do believe that at the end of the day that Mr. Smollett received a fair trial,” he said.
What the case was about
The sentencing is the latest event in a winding case entangled in issues of racism, homophobia, celebrity, policing and fraud.
After police determined his reports were false, Smollett was indicted in March 2019 on 16 counts of felony disorderly conduct. But Cook County State’s Attorney Kim Foxx’s office dropped all charges weeks later, saying he did community service, would not get his $10,000 bond back, was no danger to the community and had no prior felonies.
“Who was in charge of this thing?” special prosecutor Dan Webb asked.
“Jussie was,” Abimbola Osundairo told the jury.
Smollett has no prior felonies
The primary question at sentencing is whether Smollett, who has no prior felonies, is sentenced to prison.
A former Cook County prosecutor told CNN that Smollett’s lack of criminal history makes a jail term unlikely. Another reason is that Linn did not revoke Smollett’s bond after his conviction, said the ex-prosecutor, Darren O’Brien.
“If the person is going into custody ultimately, they usually revoke the bond,” said O’Brien, who has written guides to sentencing in Illinois published by the state’s bar association. “That’s another indication that I doubt he’s going to jail.”
Special prosecutor Daniel Webb did not file a recommendation for prison time ahead of the hearing, but did emphasize in December after Smollett’s conviction that the actor was “not repentant at all” when he testified during the trial.
CNN legal analyst and criminal defense attorney Joey Jackson previously told CNN that the judge could give Smollett probation, but Smollett “exposed himself to jail time” when he testified in court.
“When you testify in a case, the judge now gets a sense of what you said,” Jackson said. “What Jussie Smollett said was resoundingly rejected by that jury. The jury did not buy what he was selling. That’s not lost upon a judge. You came into the courtroom and fabricated.”
In addition, the city of Chicago filed a lawsuit against Smollett in April 2019 after the actor declined to pay the city $130,106.15 for the police investigation, court documents show. Smollett filed a countersuit in November 2020.
Chicago’s Department of Law noted in the city’s suit that over two dozen police officers and detectives spent weeks working on Smollett’s case in 2019, resulting in 1,836 overtime hours.
Following Smollett’s conviction in December, the city said it intended to continue pursuing its lawsuit.
CNN’s Eric Levenson contributed to this report.