Jussie Smollett lawyer tells court he's 'a real victim' of racist and homophobic attack

Jussie Smollett "is a real victim" of a "real crime," his lawyer told jurors on Monday at the start of the former Empire actor's trial, despite prosecutors' claim that he staged a homophobic and racist attack in Chicago.

Defence lawyer Nenye Uche said two brothers attacked Smollett in January 2019 because they didn't like him, and that a cheque the actor paid the men was for training so he could prepare for an upcoming music video. Uche also suggested a third attacker was involved and told jurors there is not a "shred " of physical and forensic evidence linking Smollett to the crime prosecutors allege.

Smollett "is a real victim," Uche said.

Smollett has maintained he was attacked in downtown Chicago on a frigid night in January 2019 by supporters of then-President Donald Trump, a report that ignited political and ideological divisions around the country.

But special prosecutor Dan Webb said the actor recruited the two brothers to help him carry out a fake attack, then reported it to Chicago police, who classified it as a hate crime and spent 3,000 staff hours on the investigation.

Webb said Smollett staged the assault after the television studio where he worked didn't take hate mail he had received seriously.

"When he reported the fake hate crime, that was a real crime," said Webb, who was named as special prosecutor after Cook County State's Attorney Kim Foxx's office dropped the original charges filed against Smollett. A new indictment was returned in 2020.

Smollett, who arrived at the courthouse in Chicago on Monday with his mother and other family members, is charged with felony disorderly conduct. The felony carries a prison sentence of up to three years, but experts have said it is likely that if Smollett is convicted he would be placed on probation and perhaps ordered to perform community service.

Prosecution says brothers were coached  

Webb told jurors that the two brothers — who worked on the Empire set with Smollett — say the actor paid them $3,500 to pose as his attackers after he was unhappy about how the studio handled the letter he received. That letter included a drawing of a stick figure hanging from a tree and "MAGA," a reference to Trump's Make America Great Again campaign slogan, Webb said.

Webb said Smollett then concocted the fake attack and had a "dress rehearsal" with the two brothers, including telling them to shout racial and homophobic slurs and "MAGA." Smollett also told the brothers to buy ski masks, red hats and a rope, Webb told jurors.

"He told them to use a rope to make it look like a hate crime," Webb said.

The 12 jurors plus three alternate jurors were sworn in late Monday for a trial that Judge James Linn said he expects to take about one week. Cameras are not allowed inside the courtroom and the proceedings are not being live streamed.

Brothers will be called as witnesses

Whether Smollett, who is Black and gay, will testify remains an open question. But the siblings, Abimbola and Olabinjo Osundairo, will take the witness stand and are expected to repeat what they have told police officers and prosecutors: that they carried out the attack at Smollett's behest.

Jurors also may see surveillance video from more than four dozen cameras that police reviewed to trace the brothers' movements before and after the reported attack, as well as a video showing the brothers purchasing a red hat, ski masks and gloves from a beauty supply shop hours earlier.

Smollett's lawyers have not spelled out how they will confront that evidence. Lead lawyer Nenye Uche declined to comment ahead of this week's proceedings. But there are clues as to how they might during the trial.

WATCH | Smollett's lawyer appears on NBC's Today show in 2019:

Buried in nearly 500 pages of Chicago Police Department reports is a statement from an area resident who says 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 hanging out from underneath his jacket what appeared to be a rope."

Her comments could back up Smollett's contention that his attackers draped a makeshift noose around his neck. Further, if she testified that the man was white, it would support Smollett's statements — widely ridiculed because the brothers, who come from Nigeria, are Black — that he saw pale or white skin around the eyes of one of his masked attackers.

Given there is so much evidence, including the brothers' own statements, that they participated in the attack, it is unlikely that Smollett's lawyers will try to prove they did not take part. That could lead the defence to contend that Smollett was the victim of a very real attack at the hands of the brothers, perhaps with the help of others, who now are only implicating the actor so they won't be charged.

Stories differ over $3,500 payment

The $3,500 cheque could be key. While the brothers say that was their fee to carry out the fake attack, Smollett has offered a different and much more innocent explanation: that he wrote it to pay one of them to work as his personal trainer.

"I would assume the defence is going to zero in on that," said Joe Lopez, a prominent defence lawyer not involved with the case.

What they will almost certainly do is attack the brothers' credibility, reminding jurors that they are not facing the same charges as Smollett, despite admitting they took part in the staged attack.

"Everything Smollett is responsible for, they are responsible for," said David Erickson, a former state appellate judge who teaches at Chicago Kent College of Law and is not involved in the case.

Finally, Smollett's career could take centre stage. Prosecutors could make the same point that then-Police Superintendent Eddie Johnson made when he announced Smollett's arrest in 2019: that Smollett thought the attack would win him more fame and a pay raise.

But Lopez said the defence lawyers might ask the jury the same question he asked himself.

"How would that help him with anything?" he asked. "He's already a star."