CHICAGO - In a story FOX 32 News broke first, former “Empire” actor Jussie Smollett was indicted Tuesday in Chicago by special prosecutor Dan Webb, stemming from the alleged racist and anti-gay attack on him that occurred in January of 2019.
Smollett is due in court February 24 at the Criminal Court Building at 26th and California. Webb said in a statement that Smollett faces six felony counts of disorderly conduct, charges that stem from four separate false reports that he gave to police in which he contended he was a victim of a hate crime “knowing that he was not the victim of a crime.” (App users click here to read the full indictment.)
The statement immediately raised questions about county prosecutors' decision to drop the charges last year and made it clear that those prosecutors had not adequately explained to special prosecutors why they did so. But Webb stressed that he had reached no conclusions about whether anyone involved in the case had engaged in any wrongdoing.
Webb released the following statement regarding the indictment.
"Dan K. Webb, special prosecutor for Cook County, today announced that the Office of the Special Prosecutor (“OSP”) has now completed all of its investigative steps regarding Jussie Smollett, and has made the decision to further prosecute Mr. Smollett. Based on the recommendation of the OSP, a Cook County grand jury returned a six-count indictment charging Jussie Smollett with making four separate false reports to Chicago Police Department officers related to his false claims that he was the victim of a hate crime, knowing that he was not the victim of a crime," Webb said in a statement.
Tina Glandian, who is the attorney for Smollett, released the following statement Tuesday night regarding the new indictment: "This indictment raises serious questions about the integrity of the investigation that led to the renewed charges against Mr. Smollett, not the least of which is the use of the same CPD detectives who were part of the original investigation into the attack on Mr. Smollett to conduct the current investigation, despite Mr. Smollett's pending civil claims against the City of Chicago and CPD officers for malicious prosecution. One of the two witnesses who testified before the grand jury is the very same detective Mr. Smollett is currently suing for his role in the initial prosecution of him. After more than five months of investigation, the Office of the Special Prosecutor has not found any evidence of wrongdoing whatsoever related to the dismissal of the charges against Mr. Smollett. Rather, the charges were appropriately dismissed the first time because they were not supported by the evidence. The attempt to re-prosecute Mr. Smollett one year later on the eve of the Cook County State's Attorney election is clearly all about politics not justice."
Smollett told Chicago police in January of 2019 that two men physically attacked him and yelled racial and homophobic slurs. But prosecutors had insisted Smollett faked the racist, anti-gay attack on himself in the hopes that the attention would advance his acting career.
Special prosecutor Dan Webb
But with little explanation, authorities in March of 2019 abruptly dropped all charges against Smollett, abandoning the criminal case only five weeks after the allegations were filed. In return, prosecutors said, the actor agreed to let the city keep his $10,000 in bail.
The dismissal drew a swift backlash from the mayor and police chief and raised questions about why Smollett was not forced to admit what prosecutors had said they could prove in court - that the entire episode was a publicity stunt.
A judge in August appointed Webb, a former U.S. attorney, as a special prosecutor to look into why the original charges were dropped. Webb also was looking into whether calls that Cook County State's Attorney Kim Foxx had with a Smollett relative and an ex-aide of former first lady Michelle Obama unduly influenced the decision to drop charges. Foxx recused herself from the case, but continued to weigh in.
Foxx's office released the following statement regarding the new indictment: "As the Cook County State's Attorney's Office does in all cases, the Special Prosecutor reviewed the facts, evidence, and the law, and determined charges were appropriate in this matter. We are unable to comment further as the matter is pending."
The city has sued Smollett, seeking reimbursement of more than $130,000 for overtime paid to officers who were involved in investigating Smollett's report. Smollett’s attorneys have said the city should not be allowed to recover costs from Smollett because it accepted $10,000 from the actor “as payment in full in connection with the dismissal of the charges against him.”
After the charges were initially dismissed against Smollett, among those sure to keep pressing for answers was then-Chicago Mayor Rahm Emanuel, who appeared blindsided by the decision. His voice rising in anger at times, Emanuel called the deal "a whitewash of justice" and lashed out at Smollett. He said Smollett had exploited hate-crime laws meant to protect minorities by turning the laws "inside out, upside down for only one thing - himself."
"Where is the accountability in the system?" Emanuel asked. "You cannot have, because of a person's position, one set of rules apply to them and another set of rules apply to everybody else."
“We look forward to reviewing the indictment and, as we have said previously, the City stands by our original complaint seeking to recover costs for Mr. Smollett’s false statements. We again thank the Chicago Police Department detectives for their hard work on this case the original investigation," the City of Chicago Department of Law said in a statement.
Smollett has become a household name as a result of the case.
Last year, defense attorneys said Smollett's record was "wiped clean" of the 16 felony counts related to making a false report. The actor, who also agreed to do community service, insisted that he had "been truthful and consistent on every single level since day one."
"I would not be my mother's son if I was capable of one drop of what I was being accused of," he told reporters after a court hearing. He thanked the state of Illinois "for attempting to do what's right."
Jussie Smollett | Chicago Police
In a statement, a spokeswoman for the Cook County prosecutors' office had said the dismissal came "after reviewing all of the facts and circumstances of the case." Tandra Simonton called it "a just disposition and appropriate resolution," but said it was not an exoneration.
First Assistant State's Attorney Joseph Magats had said prosecutors "stand behind the investigation and the facts."
When dropping cases, prosecutors will sometimes insist that the defendant accept at least a measure of responsibility. Outside court, neither Smollett nor his legal team had appeared to concede anything about his original report in January.
Defense attorney Patricia Brown Holmes said Smollett was "attacked by two people he was unable to identify" and "was a victim who was vilified and made to appear as a perpetrator."
Authorities alleged that Smollett, who is black and gay, knew the men and arranged for them to pretend to attack him.
Then-Mayor Emanuel said the hoax could endanger other gay people who report hate crimes by casting doubt on whether they are telling the truth.
Then-Police Superintendent Eddie Johnson said Chicago "is still owed an apology."
"I've heard that they wanted their day in court with TV cameras so that America could know the truth. They chose to hide behind secrecy and broker a deal to circumvent the judicial system," he said.
Chicago's top prosecutor, Cook County State's Attorney Kim Foxx, recused herself from the initial investigation before Smollett was charged, citing conversations she had with a Smollett family member.
Many legal experts were surprised by the dismissal, especially the fact that it did not include any condition that Smollett apologize and admit he staged the assault.
"This situation is totally bizarre. It's highly, highly unusual," said Phil Turner, a Chicago defense attorney and former federal prosecutor with no ties to the case.
Smollett reported that he was attacked around 2 a.m. on Jan. 29 on his way home from a sandwich shop. Investigators said he made the false report because he was unhappy with his pay on "Empire" and believed it would promote his career.
The actor plays the gay character Jamal Lyon on the hit Fox TV show, which follows a black family as they navigate the ups and downs of the recording industry.
Smollett said two masked men shouted racial and anti-gay slurs, poured bleach on him, beat him and looped a rope around his neck. He claimed they shouted, "This is MAGA country" - a reference to President Donald Trump's "Make America Great Again" campaign slogan. He asserted that he could see one of the men was white because he could see the skin around his eyes.
Police said Smollett paid $3,500 to the two men, both of whom are black.
The men were brothers Abimbola "Abel" and Olabinjo "Ola" Osundairo, and one of them had worked on "Empire." An attorney for them, Gloria Schmidt, has said the brothers agreed to help Smollett because of their friendship with him and the sense that he was helping their careers.
Schmidt said in a statement: "The Osundairo brothers are aware of the new charges brought against Jussie Smollett today by the grand jury. As stated before, they are fully committed to the public knowing the truth about what occurred on January 29, 2019. The Osundairo brothers will continue to cooperate with that process and they thank the Special Prosecutor’s office for their tireless work in seeing that justice was administered."
Smollett's attorney told "Good Morning America" that the two brothers are lying. Tina Glandian said Smollett had hired one brother as a personal trainer, and that they discussed training and nutrition in the hours before the attack as Smollett's flight to Chicago was delayed. But she said Smollett had no idea who attacked him until the brothers were later identified by police.
She said Smollett is a crime victim and "just wants his life back."
Before the 2019 attack, police said, Smollett also sent a letter threatening himself to the Chicago studio where "Empire" is shot. The FBI, which is investigating that letter, has declined to comment.
Regarding the new indictment, it was not immediately clear what sentence Smollett faces if convicted. When he was originally charged with disorderly conduct, it was reported that he could be placed on probation or sent to prison for one to three years per count.
Smollett’s case has become an issue in Foxx's bid for a second term. Those looking to unseat the first black woman to hold the county's highest law enforcement position, have blasted her handling of the matter as haphazard and indecisive. They say it indicates she has bad judgment and favors the rich and powerful in deciding who will be prosecuted.
Foxx's campaign committee issued a biting statement Tuesday referring to former FBI Director James Comey's decision to briefly reopen an investigation into Democratic candidate Hillary Clinton's email shortly before the presidential election in 2016 that Donald Trump would win.
"What’s questionable here is the James Comey-like timing of that charging decision"…which can only be interpreted as the further politicization of the justice system, something voters in the era of Donald Trump should consider offensive," the statement from Friends for Foxx said.
Smollett's attorney also raised political implications.
The attempt to re-prosecute Smollett "on the eve of the Cook County State's Attorney election is clearly all about politics not justice," she said.
In his news release, Webb said he concluded that prosecuting Smollett was “in the interest of justice” for a number of reasons, including the extensive details of Smollett's false account as well as the resources that the police department threw at the investigation.
When the first indictment against Smollett was returned, Webb wrote, the state’s attorney’s office had concluded that the evidence in the case was "strong.” But the office failed to offer any new evidence to explain why authorities dropped the charges just a few weeks later, Webb said.
Further, Webb took issue with an assertion in a news release issued when the charges were dropped that Smollett had not received special treatment and that the case was resolved "under the same criteria that would be available for any defendant with similar circumstances." Webb asked for but never received any examples of other such cases, he wrote.
The new charges were sure to reignite many of the tensions that surrounded Smollett a year ago. When his claims first emerged, he drew a groundswell of support from fans and celebrities and gave an emotional television interview about the attack.
The case came to reflect the polarized state of political discourse in America. Many Democrats initially called it a shocking instance of Trump-era racism and hate, while Republicans depicted it as yet another example of liberals rushing to judgment and disparaging the president's supporters as bigots.
Smollett, 37, has not had any notable film or television roles announced since his departure from the TV series was made public in April 2019. Producers have the option to bring him back during the sixth and final season but have said they have no plans to do so.
“Empire” has 10 episodes left. It is scheduled to return March 3.
The Associated Press contributed to this report.