An Illinois appeals court has rejected Jussie Smollett’s request to toss his conviction on disorderly conduct counts related to a racist and homophobic attack that he claimed he was a victim of in Chicago.
A three-judge panel on Friday voted 2 to 1 to uphold the former “Empire” actor’s five felony count conviction for lying to police about the 2019 attack, which authorities later determined had been staged by Smollett.
The stunt, which prosecutors said was done for publicity, resulted in Smollett being sentenced last year to 30 months of felony probation and 150 days in jail, and being ordered to pay more than $120,000 in restitution and a $25,000 fine for making false reports to police.
He served just six days in jail before being freed, pending this appeal.
Smollett’s attorneys said they plan to appeal to the nation’s highest court.
“We are preparing to escalate this matter to the Supreme Court, armed with a substantial body of evidence,” they said in a statement Friday.
Smollett’s attorneys had argued that his sentence was excessive and his prosecution violated his due process rights, reasoning, in part, that there had been a binding non-prosecution agreement. They also objected to him facing a special prosecutor after he had already made a deal with Cook County prosecutors to drop the initial charges. This amounted to double jeopardy, they argued.
Appellate Judge Freddrenna Lyle, the lone judge who sided with Smollett, agreed that the special prosecutor’s appointment ― after Smollett had already completed community service ― was “fundamentally unfair.”
“The appointment of a special prosecutor to reindict Smollett after he had entered into a binding agreement, which he completed, with the State was fundamentally unfair. Additionally, it was common sense that Smollett was bargaining for a complete resolution of the matter, not simply a temporary one,” Lyle wrote.
Smollett maintained his innocence throughout his trial. Upon his conviction, he shouted out in court that his incarceration put his life in immediate danger.
“I am not suicidal. And if anything happens to me when I go in there, I did not do it to myself. And you must all know that,” he said.