CHICAGO (AP) — Two brothers are at the center of the case that prosecutors will present before jurors when Jussie Smollett’s trial begins this week.
Former ‘Empire’ Actor Claims He Was the Victim of a Racist and Homophobic Attack in downtown Chicago on a frigid night in January 2019. The siblings, who worked with him on the TV show, say he paid them $3,500 to impersonate his attackers.
Smollett is accused of lying to the police about the alleged attack and has been charged with disorderly conduct. A class 4 felony, the crime carries a jail term of up to three years, but experts have said it is more likely if convicted, Smollett will face probation and perhaps community service.
Whether the black and openly gay Smollett testifies remains an open question. But the siblings, Abimbola and Olabinjo Osundairo, will enter the witness box where they are expected to repeat what they told police officers and prosecutors: that they carried out the attack on behalf of Smollett.
Judges can also see surveillance videos from more than four dozen cameras which police monitored to trace the brothers’ movements before and after the reported attack, as well as a video of the brothers purchasing a red hat, ski masks and gloves from a beauty supply store hours earlier.
Smollett’s lawyers have not set out how they will handle that evidence and the lead attorney, Nenye Uche, declined to comment. But there are clues as to how they might do that during the trial, which begins Monday with jury selection in a Chicago courtroom. It is expected to take a week.
Buried in nearly 500 pages of Chicago Police Department reports is a statement from a woman living in the area who said she saw a white man with “reddish brown hair” who appeared to be waiting for someone that night.
She told a detective that when the man turned away from her, she could see “what looked like a rope hanging under his coat.”
Her comments could support Smollett’s claim that his attackers had a makeshift noose draped around his neck. Further, if she testified that the man was white, it would support Smollett’s statements – widely ridiculed because the brothers, who are from Nigeria, are black – that he had pale or white skin around the eyes of one of his masked attackers saw.
One of the defense attorneys, Tina Glandian, suggested during a March 2019 appearance on NBC’s “Today” show that one of the brothers could have used white makeup around his eyes to trick Smollett into believing he was white. . To allay the judges’ skepticism, Glandian could ask the brothers about a video she talked about on the program and said one of them reciting in whiteface a monologue of the Joker character from a movie.
Since there is so much evidence, including the brothers’ self-reported statements, that they participated in the attack, it’s unlikely that Smollett’s lawyers will attempt to prove they did not participate. That might lead the defense to argue that Smollett was the victim of a very real-life attack by the brothers, perhaps with the help of others, who now only involve the actor so prosecutors won’t charge them either.
The $3,500 check may be the key. While the brothers say this was their fee to carry out the fake attack, Smollett has offered a different and much more innocent explanation: that he wrote the check to pay one of them to work as his personal trainer.
“I assume the defense will take that up,” said Joe Lopez, a prominent attorney who was not involved in the case. “If they were texting messages about training sessions, checks he (Smollett) wrote them for training, photos, the defense would use all of that.”
What they will almost certainly do is attack the credibility of the brothers — an effort that is sure to remind the jury that the brothers will not face the same criminal charges as Smollett, despite admitting that they participated in the staged attack.
“Everything Smollett is responsible for, they are responsible for,” said David Erickson, a former appellate judge who teaches at the Chicago Kent College of Law and is not involved in the case. “They joined and run away? What the hell is that?”
Erickson said he expects prosecutors to face up to that issue before Smollett’s lawyers do, because they don’t want to seem like they’re trying to hide anything.
Finally, Smollett’s career could take center stage. On the one hand, prosecutors might be making the same point as then police commissioner Eddie Johnson when he announced Smollett’s arrest in 2019: that Smollett thought the attack would bring him more fame and get him a pay raise on a hit TV show.
But Lopez said the defense attorneys could ask the jury the same question he asked himself.
“How would that help him with anything?” he asked. “He’s already a star.”
View full coverage of the AP of the Jussie Smollett case.