Special prosecutor in Jussie Smollett case says actor should return to jail after appeal was denied

An appeals court upheld the disorderly conduct convictions Friday of actor Jussie Smollett, who was accused of staging a racist, homophobic attack against himself in 2019 and then lying about it to Chicago police.

Smollett, who appeared in the TV show “Empire,” challenged the role of a special prosecutor, jury selection, evidence and many other aspects of the case. But all were turned aside in a 2-1 opinion from the Illinois Appellate Court.

Smollett had reported to police that he was the victim of a racist and homophobic attack by two men wearing ski masks. The manhunt for the attackers soon turned into an investigation of Smollett himself, leading to his arrest on charges he had orchestrated the attack.

Authorities said he paid two men whom he knew from work on “Empire.”

A jury convicted Smollett in 2021 on five felony counts of disorderly conduct, a charge that can be filed in Illinois when a person lies to police.

He now will have to finish a 150-day stint in jail that was part of his sentence. Smollett spent just six days in jail while his appeal was pending.

In a statement, a spokesperson for Smollett said they plan to fight the decision.

“We wish to highlight that the decision was divided, with Justice [Freddrenna] Lyle offering a detailed analysis in favor of Smollett. We are preparing to escalate this matter to the Supreme Court, armed with a substantial body of evidence,” the statement said.

The special prosecutor assigned to the case, Dan Webb, told NBC News in an interview hours after the court’s decision that Smollett should finish his 150 day jail sentence.

“This is pretty much the end of the road for Mr. Smollett,” Webb said. “Under Illinois law he has one right of appeal, that’s what he had today. The Illinois Appellate Court denied all his issues. He can try to go up to the higher court, the Illinois Supreme Court. That’s a discretionary appeal that would be determined if the Illinois Supreme Court wants to hear his issues. But if that doesn’t happen, then he’s hit the end of the road and he would shortly be in jail.”

Lawyers for Smollett, who is Black and gay, have publicly claimed he was the target of a racist justice system and people playing politics.

Lyle, the appellate judge, said she would have thrown out Smollett’s convictions. Lyle said it was “fundamentally unfair” to appoint a special prosecutor and charge Smollett when he had already performed community service as part of a 2019 deal with Cook County prosecutors to drop the initial charges.

“It was common sense that Smollett was bargaining for a complete resolution of the matter, not simply a temporary one,” Lyle said.

Webb said in the interview that Smollett needs to be held to the same standard as everyone else.

“The moral of this story is that there are not two systems of justice. One for the rich, famous and movie stars and for everybody else,” Webb said. “He faces the same system of justice everybody else does.”

He added that he respects Smollett’s right to claim innocence, but said the actor received a fair trial.

“The evidence was overwhelming,” Webb said. “He was convicted of all of five outta six counts. He was sentenced to jail … he has had his day in court.”