Jussie Smollett appeals conviction to Illinois Supreme Court

SPRINGFIELD, Ill. - Jussie Smollett's appeal to the Illinois Supreme Court on Tuesday raised a legal question about double jeopardy.

Smollett's attorneys said the question is not whether he staged a hoax. They said the case never should have gone to trial.

It is rare to get the Illinois Supreme Court to hear an appeal.

Smollett’s attorney Nenye Uche argument before the justices in Springfield focused on the agreement Smollett had with Cook County State’s Attorney Kim Foxx before the trial.

In 2019, Smollett claimed two men wearing red MAGA hats jumped him outside his downtown apartment building and made racist, homophobic comments.

He was accused of staging a hoax but Foxx dropped the charges against the Empire actor in exchange for a fine and community service. 

Following that, a special prosecutor investigated. Smollett was put on trial and found guilty of five counts of disorderly conduct. He was sentenced to 150 days in jail - six of which he served before he was freed pending appeal, 30 months of probation and ordered to pay $130,160 in restitution. 

Smollett’s attorney said Smollett was the victim of double jeopardy.

Nenye Uche said the distinguishing thing about this case is whether Smollett fulfilled the agreement.

"In this case, Mr. Smollett has given up his $10,000 bail bond. That's a lot of money,'" Uche said.

"When Kim Foxx cut the deal with him, whereby he would do community service and sacrifice his bond money, that was a deal and it should have been honored," FOX 32 legal analyst Karen Conti said. "When the special prosecutor brought charges again, that that violated the double jeopardy clause of the Constitution and even if didn't technically violate the due process and double jeopardy clause, it was unfair to cut a deal and then prosecute him again."

If the court does not rule in Smollett’s favor, he would likely have to serve his sentence.

The court’s opinion is expected in a few months.