(CNN)Former “Empire” actor Jussie Smollett is scheduled to be sentenced in a Chicago court Thursday for falsely reporting to police that he was the victim of a hate crime — though his attorneys will first try to persuade a judge to set aside the guilty verdict.
Smollett, 39, was found guilty in December on five counts of felony disorderly conduct for making false reports about what he said was an anti-gay and anti-Black hate crime.
The actor, who is Black and gay, told Chicago police that on a frigid night in January 2019 two unknown men attacked him, yelled racist and homophobic slurs at him, poured bleach on him and wrapped a noose around his neck.
Celebrities and politicians rushed to defend him publicly, and Chicago police investigated the case as a possible hate crime. But they soon determined the actor orchestrated the incident and paid two brothers he knew from the Fox drama “Empire” to stage the incident for publicity.
Smollett maintained his innocence under oath during the trial, but the jury convicted him on five of six felony charges after nine hours of deliberations.
A disorderly conduct charge for a false crime report is a class 4 felony in Illinois, each punishable by up to three years in prison and a $25,000 fine.
Cook County Judge James Linn has discretion in imposing a concurrent or consecutive sentence for each of the five counts. He is allowed to sentence Smollett to probation, conditional discharge, community service, restitution or a combination. Conditional discharge is a release with stipulations but without probational supervision.
At the hearing Thursday afternoon, attorneys are first expected to argue before Judge Linn over the actor’s request to toss the verdict or grant him a new trial.
Smollett’s attorney Mark Lewis had filed a dozen arguments for the actor’s request last month, including the defense’s contention that it was improperly prevented from asking questions of potential jurors during the jury selection process. At the time, Linn ruled only he would ask questions, and not the defense or prosecution.
If Linn denies Smollett’s request or defers a ruling, sentencing will proceed. Smollett’s defense attorneys also have said they intend to appeal the verdict.
What the case was about
The sentencing is the latest event in a winding case entangled in issues of racism, homophobia, celebrity, policing and fraud.
After police determined his reports were false, Smollett was indicted in March 2019 on 16 counts of felony disorderly conduct. But Cook County State’s Attorney Kim Foxx’s office dropped all charges weeks later, saying he did community service, would not get his $10,000 bond back, was no danger to the community and had no prior felonies.
That decision set off debate over whether Smollett had received preferential treatment, leading a judge to appoint a special prosecutor, Dan Webb, to look into it in August 2019. That led to a second grand jury, which in February 2020 indicted Smollett on six felony charges.
The incident effectively ended Smollett’s acting career. His character was written out of “Empire,” which ended in 2020, and though he has since directed and produced a film, he’s yet to appear in another TV or film acting role.
In court late last year, the brothers, Abimbola and Olabinjo Osundairo, were among seven witnesses for the prosecution at the trial. They testified that Smollett directed them and paid them to stage the attack in an attempt to garner sympathetic media coverage.
“Who was in charge of this thing?” special prosecutor Dan Webb asked.
“Jussie was,” Abimbola Osundairo told the jury.
Smollett testified in his own defense to deny any such plan and said he paid the brothers only for training advice and nutritional tips. He cast doubt on their true motivations and said he had a sexual relationship with one of the brothers, which the brother denied.
Smollett has no prior felonies
The primary question at sentencing is whether Smollett, who has no prior felonies, is sentenced to prison.
A former Cook County prosecutor told CNN that Smollett’s lack of criminal history makes a jail term unlikely. Another reason is that Linn did not revoke Smollett’s bond after his conviction, said the ex-prosecutor, Darren O’Brien.
“If the person is going into custody ultimately, usually they revoke the bond,” said O’Brien, who has written guides to sentencing in Illinois published by the state’s bar association. “That’s another indication that I doubt he’s going to jail.”
Special prosecutor Daniel Webb did not file a recommendation for prison time ahead of the hearing, but did emphasize in December after Smollett’s conviction that the actor was “not repentant at all” when he testified during the trial.
CNN legal analyst and criminal defense attorney Joey Jackson previously told CNN that the judge could give Smollett probation, but Smollett “exposed himself to jail time” when he testified in court.
“When you testify in a case, the judge now gets a sense of what you said,” Jackson said. “What Jussie Smollett said was resoundingly rejected by that jury. The jury did not buy what he was selling. That’s not lost upon a judge. You came into the courtroom and fabricated.”
In addition, the city of Chicago filed a lawsuit against Smollett in April 2019 after the actor declined to pay the city $130,106.15 for the police investigation, court documents show. Smollett filed a countersuit in November 2020.
Chicago’s Department of Law noted in the city’s suit that over two dozen police officers and detectives spent weeks working on Smollett’s case in 2019, resulting in 1,836 overtime hours.
Following Smollett’s conviction in December, the city said it intended to continue pursuing its lawsuit.
CNN’s Eric Levenson contributed to this report.