The actor, who is black and gay, told Chicago police that on a very cold night in January 2019, two unidentified men attacked him, shouted racist and anti-gay insults at him, poured bleach on him and wrapped a noose around his neck.
Smollett maintained his innocence under oath during the trial, but a jury convicted him on five of six criminal charges after nine hours of deliberation.
The charge of disorderly conduct for falsely reporting a crime is a fourth-degree felony in Illinois, each punishable by up to three years in prison and a $25,000 fine.
Cook County Judge James Lane has discretion to impose a simultaneous or consecutive sentence on each of the five counts. He is allowed to sentence Smollett to probation, conditional discharge, community service, compensation, or combination. A conditional discharge is conditionally exempted but without probationary supervision.
At Thursday afternoon’s hearing, lawyers are expected to first argue before Judge Lin over the actor’s request to have the ruling overturned or to give him a new trial.
Smollett’s attorney, Mark Lewis, presented dozens of arguments for the actor’s request last month, including the defense’s claim that he was improperly barred from asking potential jurors during the jury selection process. At the time, Lin decided he would only ask questions, not the defense or the prosecution.
If Lane refuses Smollett’s request or delays sentencing, sentencing will proceed. Smollett’s defense attorneys also said they intend to appeal the ruling.
What was the issue?
The verdict is the latest event in a tortuous case involving racism, homophobia, celebrity, police and fraud cases.
After police determined his reports were false, Smollett was indicted in March 2019 on 16 counts of disorderly conduct offenses. But the Cook County District Attorney’s office, Kim Fox, dropped all charges weeks later, saying he had done community service, would not get his $10,000 bond back, was not a danger to the community and had no prior crimes.
“Who was responsible for this thing?” asked Special Prosecutor Dan Webb.
“Jossie Kant,” Abimbola Osondaero told the jury.
Smollett had no previous felonies
The primary question when sentencing is whether Smollett, who has no prior felonies, ever received a prison sentence.
The former Cook County District Attorney told CNN that Smollett’s lack of a criminal history makes a prison sentence unlikely. Another reason, former prosecutor Darren O’Brien said, was that Lane did not void Smollett’s bail after his conviction.
“If a person is eventually going to be taken into custody, they usually void the bail,” said O’Brien, who has written sentencing guides in Illinois published by the state bar association. “This is another indication that I doubt he will be imprisoned.”
Special Prosecutor Daniel Webb did not recommend a prison sentence before the hearing, but confirmed in December after Smollett’s conviction that the actor “wasn’t repentant at all” when he testified during the trial.
CNN legal analyst and criminal defense attorney Joe Jackson previously told CNN that a judge might give Smollett probation, but Smollett “exposed himself to a prison sentence” when he testified in court.
“When you testify in a case, the judge now understands what you said,” Jackson said. “What Josie Smollett said was flatly rejected by that jury. The jury didn’t buy what he was selling. It wasn’t lost on the judge. I came into the courtroom and fabricated it.”
In addition, the city of Chicago sued Smollett in April 2019 after the actor refused to pay $130,106.15 to the city for a police investigation, court documents show. Smollett filed a counterclaim in November 2020.
The Chicago Department of Law noted in the city’s lawsuit that more than two dozen police officers and investigators spent weeks working on the Smollett case in 2019, resulting in 1,836 overtime hours.
After Smollett’s conviction in December, the city said it intended to pursue the lawsuit.
CNN’s Eric Levinson contributed to this report.
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