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Analyzing the Grounds for Jussie Smollett Appeal


As you may recall, Jussie Smollet faked a hate crime attack against himself and was charged with several crimes including disorderly conduct. Smollet was charged with filing a false police report which is a class-4 felony in the State of Illinois. Smollet was charged with 16 counts, but prosecutors said they would not pursue them in light of Smollet’s community service and an agreement to surrender his bond money to cover the cost of the investigation.

Many were shocked by the decision not to pursue charges, and a judge overseeing the case assigned a special prosecutor to review the matter. That prosecutor filed new charges against Smollet. Smollet’s defense team is now arguing that it violates double jeopardy.

They raised several other counts on appeal too. The prosecution allegedly excluded a gay juror and there was only one Black juror on the jury at the time of his conviction. The appeal also alleges that the judge offered “uninvited commentary” that unduly influenced the jury against Smollet and his arguments. The defendant further argued that the punishment handed down by the court was excessive in the light of Smollet’s conviction.

The matter is being reviewed in the Fifth Circuit Court of Appeals in Illinois. Prosecutors maintain that Smollet orchestrated a hoax for publicity. Smollet vehemently denied these charges.

Analyzing the arguments

Smollet will need to establish that the factors raised by his legal team led to a wrongful conviction against him on a flimsy or prejudicial basis. While Smollet has maintained his innocence through the matter, claiming that the beating was not staged, that is not enough to win an appeal. The appellate court will need to believe that the makeup of the jury and/or the commentary by the judge unduly influenced the outcome of the case.

The second matter involves double jeopardy which is a concept that is not well understood by the public. Essentially, you cannot be charged with the same crime twice by the same court system. So, it’s within the realm of possibility that Smollet could still face criminal charges filed by the federal government. However, that’s not what’s happening here.

In this case, one DA decided to drop the majority of charges filed against Smollet and charge him with disorderly conduct. The question then becomes: Does the decision to drop the charges constitute a first attempt. If it does, then a second attempt to prosecute the charges would be blocked in the Illinois court system. If it doesn’t, then the State of Illinois can still pursue charges against Smollet.

Something similar happened in the Bill Cosby case where a decision was reached not to pursue specific charges based on a deal made with a prosecutor. So, there is strong reason to believe Smollet might get this decision against him vacated in light of that case, but there must be an agreement between the defense and the prosecutors.

Talk to a Champaign, IL Criminal Defense Lawyer Today 

Patel Law, PC represents the interests of Illinois residents who are facing criminal charges. Call our Champaign criminal lawyers today to schedule an appointment and we begin going over your options immediately.



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