Jussie Smollett‘s double jeopardy claims serve as the former Empire star’s “strongest argument” for a conviction appeal, legal experts say.
In a 2-1 decision Wednesday, a panel of three appellate judges granted Smollett’s release from the Cook County Jail in Illinois after posting a $150,000 bond. If there’s any chance of a court tossing out his conviction and 150-day jail sentence, it could arise through a double jeopardy defense, according to Rita Mkrtchyan, senior attorney at Oak View Law Group.
“When I hear the facts leading up to the dismissal, it sounds to me as if Smollett reached a deal with the Cook County state’s attorney and served his punishment by paying a $10,000 fine and completing community service,” Mkrtchyan told the Washington Examiner on Thursday.
SUPREME COURT WON’T CONSIDER REINSTATEMENT OF BILL COSBY SEXUAL ASSAULT CONVICTION
During a Wednesday news conference outside the Chicago jailhouse, 39-year-old Smollett’s legal team once again brought up double jeopardy arguments, referring to Cook County State’s Attorney Kim Foxx’s initial dismissal of the indictment against Smollett in exchange for his forfeiture of a $10,000 bond.
“We are very happy with the ruling made by the Illinois District Appellate Court,” Smollett’s attorney, Nenye Uche, said in a statement, adding, “We can finally have an intellectual discussion about our laws with our esteemed appellate court.”
Emily D. Baker, a former Los Angeles County deputy district attorney with a decade of experience handling prosecutions, told the Washington Examiner that Smollett was released from jail pending appeal due to the relative brevity of his jail sentence.
“By the time this gets decided on appeal, he would have already served his incarceration sentence. And then he’s harmed. He can’t undo that if he wins the appeal,” Baker said, noting that of all the arguments Smollett’s team presented for an appeal, the “strongest one is a double jeopardy argument.”
“I also think it’s why the appellate court released him pending taking this up because it’s not as if they looked at this and went, ‘There’s no way he could win on this appeal.’ There’s a real question here,” Baker added.
Baker also made the connection between Smollett’s case and former actor and comedian Bill Cosby‘s sexual assault conviction, which was overturned on appeal because the prosecutors made an informal agreement with Cosby.
But Cosby relied on a nonprosecution agreement “to testify under oath at a deposition that was then later used against him making that case much more clear cut,” Baker said, underscoring that the question is whether the appellate court will recognize Smollett’s agreement with Foxx as a nonprosecution agreement.
“Did the bond forfeiture constitute a deal?” Baker said, asserting that this is the question the court will be focused on.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
Smollett alleged in 2019 that he was assaulted by two men who yelled racist and homophobic slurs at him while tying a noose around his neck. Police said he manufactured the story to advance his career, but the actor denied the claim. The actor also said his attackers yelled, “This is MAGA country!” during the incident.
Smollett was convicted in December on five counts of felony disorderly conduct and acquitted on a sixth. He had pleaded not guilty to the charges.
