CHICAGO — Jussie Smollett walked out of the Leighton Criminal Court Building on Thursday evening stone-faced, surrounded by family, followed by a swarm of reporters shouting questions and photographers angling for a shot.
The courthouse frenzy at the conclusion of Smollett’s criminal trial was nothing new for his case, which for nearly three years has drawn a level of attention typically reserved for serious offenses such as public corruption, sexual abuse or murder.
Smollett, by contrast, stands convicted of one of the lowest-level felonies Illinois has on the books — and the likelihood of him seeing prison time is probably low.
A jury on Thursday found Smollett guilty on five out of six counts of disorderly conduct, a Class 4 felony, alleging he falsely reported to police that he was a victim of a hate crime attack in the early morning hours of Jan. 29, 2019.
The verdict capped off eight days of a closely watched trial, during which prosecutors successfully argued Smollett orchestrated a phony assault on himself with the help of two brothers who, at his request, yelled slurs and tried to wrap a noose around his neck.
To many it was a Keystone Kops crime that embarrassed the city, costing taxpayers tens of thousands of dollars in police overtime to investigate and providing endless fodder for late-night comics. But in the end, what punishment is appropriate?
That decision is up to Judge James Linn, who presided over Smollett’s trial and will have a range of options come sentencing. Class 4 felonies carry penalties of one to three years in prison, but also probation or conditional discharge, which is similar to probation but with less strict conditions.
Smollett was convicted on five counts, but it is likely that if he is sentenced on each of them, they will run concurrent with each other, said Darren O’Brien, a former Cook County prosecutor who has written guides to sentencing published by the Illinois State Bar Association.
Linn would, however, have the option to impose consecutive sentences if he determines it is necessary to protect the public from further criminal conduct by Smollett, O’Brien said.
“I don’t think he’s going to jail at all, that’s my opinion,” O’Brien said. “Most people wouldn’t under these circumstances.”
Linn also could impose a fine as well as order restitution, a monetary amount either agreed upon by the prosecution and defense, or determined at a sentencing hearing.
If Smollett is sentenced to prison time, he would be eligible for day-for-day credit for good behavior — meaning he would only need to serve half of his sentence.
While prison seems unlikely in the Smollett case, there are a few wild cards that make predictions uncertain, experts said.
While the underlying felonies are minor, the case is undeniably high-profile — a national embarrassment for the city of Chicago that allegedly cost taxpayers more than $130,000 in police overtime.
And special prosecutor Dan Webb told reporters Thursday that he would probably point out during a sentencing hearing that Smollett took the stand in his own defense and lied for “hours and hours and hours.”
“I think this will probably be a point that I’ll make at sentencing, that not only did Mr. Smollett lie to the police and wreak havoc in this city for weeks on end for no reason whatsoever, but then he compounded the problem by lying under oath to a jury, which I don’t think should happen,” Webb said.
Defendants are not generally prosecuted for perjury when they testify at their own trials, but Linn may not look kindly on the alleged falsehoods at sentencing.
Either way, there are still some legal hurdles to clear before a sentencing hearing, which is likely months away.
First, the defense will file a motion for a new trial, a standard request that typically outlines all their allegations of the judge’s errors over the course of the trial as well as at previous pretrial hearings. Such motions are rarely granted.
If the defense’s request for a new trial is rejected, then the case will move forward once a pre-sentencing report is completed. Criminal sentencing can involve a lengthy hearing at which both prosecutors and defense can present witnesses and argument if they so choose. Smollett himself will also have a chance to address the judge.
Linn, meanwhile, has been all over the map in sentencing defendants, at least in cases that have garnered media attention.
He sentenced a health care worker to probation for failing to report a boy’s abuse. In another case, he imposed a nine-year prison term for a non-fatal DUI, records show.
In one of his more high-profile cases in recent years, Linn gave 32 years to a teenager who pushed a woman down a flight of steps to her death while trying to rob her of her cellphone on a CTA platform.
His leniency in sex offense cases has been well-documented, particularly in a Better Government Association investigation last year.
In 2011, Linn threw out his own finding of guilty for a man who was convicted of sexually assaulting a woman he met on an online dating site, and then convicted him instead on lesser charges and sentenced him to just 90 days in jail, according to a Tribune report.
Perhaps more relevant to the Smollett case is an unusual requirement Linn imposed in 2013 on an Alsip man who pleaded guilty to putting a noose around the neck of a Black teenager.
Like Smollett’s case, the attack in December 2011 drew a firestorm of media attention and led to Matthew Herrmann being charged with felony counts of committing a hate crime, unlawful restraint and battery.
But in an unusual deal with prosecutors, he pleaded guilty to misdemeanor battery and agreed to participate in a “peacemaking circle” with the victim, his family, clergy and school counselors.
Linn agreed to the deal and added his own provision: Herrmann, a philosophy student at a suburban community college, had to write an essay on lynching and read it aloud at one of the peacemaking sessions.
Meanwhile, whatever Linn’s sentence winds up being for Smollett, it might only be the beginning of an extended legal saga.
The actor’s lead defense attorney Nenye Uche told reporters Thursday that they are confident Smollett will be exonerated on appeal.
“If you’ve been convicted of something that you did not do, why wouldn’t you want to appeal?” Uche said.
Uche also underscored the drama that unfolded between the lawyers and even with the judge during the hot-button case, which he called “a very unusual proceeding.”
“I’ve handled homicide-type cases I have never felt this you know, go through the emotional roller coaster that we went through in this one,” he said. “That’s the most diplomatic thing I will say. But I don’t for one second believe that justice was done today.”
The combative undertone of the trial lasted right up through jury deliberations, when Uche and other members of Smollett’s team accused Linn of improperly giving the jury a copy of Smollett’s full interview with “Good Morning America” in the weeks after the attack, even though the jury had not requested it and only snippets of the recording had been played at trial.
During a discussion Wednesday about which trial exhibits could be sent back to the jury room, prosecutors asked for the full video to be included for jurors’ consideration. Linn denied the request, since only a portion had been played for the jury. He reconsidered the next day, saying that since the full video had formally been entered as a trial exhibit, jurors could have the whole thing.
During an in-chambers conference with attorneys in the middle of Thursday’s deliberations, defense attorneys strongly objected.
“I think it’s completely and entirely improper to be sending a TV interview, not under oath, not by police officers, the jury heard a minute or two. You want to send back the whole 17 minutes,” Uche said, according to a transcript of the proceedings.
Linn said he was “perhaps being too cautious” the day before when he restricted what the jurors could view.
“I will note that this is an exhibit in ... in great part created by the defendant himself talking about everything about the case himself voluntarily,” he said, noting Uche’s objection. “But the jury can decide what they want to think about it.”
That discussion came three days after prosecutors filed a petition for contempt against defense attorney Tamara Walker, arguing she violated an agreement to not speak to the media during the trial by making “inflammatory comments” to the Tribune about an incident during a sidebar hearing earlier in the trial.
Walker had claimed that Linn “lunged” at her after Smollett’s defense team moved for a mistrial, an allegation Linn strenuously denied. Prosecutors withdrew the petition Friday, according to a spokeswoman for the defense team.
The atmosphere also grew tense on the second day of trial, when jurors viewed a short clip of the brothers’ police interrogation, during which one officer apparently referred to Smollett’s “pretty face.” Uche asked a detective on the stand if he thought that was appropriate, leading to an objection from prosecutors.
Amid crosstalk, Linn said from the bench: “He can say that. So what?” That prompted one of Smollett’s supporters seated in the front row of the gallery to repeat in apparent shock and disbelief, “So what?”
Uche hinted he might be asking for a mistrial; Linn sent the jury out of the room while defense attorneys conferred. When Linn called jurors back in, he told them: “Things get testy from time to time.”
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