Actor Jussie Smollett was indicted yesterday for a second time on charges of lying to police about a racist and anti-gay attack he allegedly staged on himself in downtown Chicago, renewing a divisive criminal case that drew worldwide attention last year.
The indictment came from a special prosecutor who was appointed after Cook County prosecutors dropped the same charges last March.
The new charges were sure to reignite many of the tensions that surrounded Smollett a year ago. When his claims first emerged, he drew a groundswell of support from fans and celebrities and gave an emotional television interview about the attack.
The case came to reflect the polarised state of political discourse in America. Many Democrats initially called it a shocking instance of Trump-era racism and hate, while Republicans depicted it as yet another example of liberals rushing to judgment and disparaging the president’s supporters as bigots.
Special prosecutor Dan Webb said in a statement that Smollett faces six felony counts of disorderly conduct, charges that stem from four separate false reports that he gave to police in which he contended he was a victim of a hate crime “knowing that he was not the victim of a crime.”
The statement immediately raised questions about county prosecutors’ decision to drop the charges and made it clear that those prosecutors had not adequately explained to special prosecutors why they did so.
But Mr Webb stressed that he had reached no conclusions about whether anyone involved in the case had engaged in any wrongdoing.
Smollett, who is black and gay, was originally charged with disorderly conduct in February 2019 for allegedly staging the attack and lying about it to investigators.
The allegations were dropped the following month with little explanation, angering police officials and then-Mayor Rahm Emanuel.
Tina Glandian, Smollett’s attorney, questioned Mr Webb’s decision to file new charges.
The indictment “raises serious questions about the integrity of the investigation that led to the renewed charges” Ms Glandian said, citing the use of the same detectives who were part of the original investigation into the attack to conduct the latest probe, despite Smollett’s pending civil claims against the city and police officers for malicious prosecution.
He is scheduled to appear in court for arraignment on 24 February 2020.
Smollett told police he was walking home early on 29 January 2019 last year when two masked men approached him, made racist and homophobic insults, beat him and looped a noose around his neck before fleeing.
He said his assailants, at least one of whom he described as white, told him he was in “MAGA country” a reference to President Donald Trump’s campaign slogan, “Make America Great Again”.
Several weeks later, authorities alleged that Smollett had paid two black friends $3,500 to help him stage the attack because he was unhappy with his salary as an actor on Empire, a Fox series about that follows a black family as they navigate the ups and downs of the recording industry. Smollett was accused of using the scheme to drum up publicity for his career.
A judge in August appointed Mr Webb, a former US attorney, to look into why the original charges were dropped.
Mr Webb also was investigating whether phone calls that Cook County State’s Attorney Kim Foxx had with a Smollett relative and a former aide of former first lady Michelle Obama unduly influenced the decision to drop charges. Ms Foxx recused herself from the case but continued to weigh in.
At the time, Judge Michael Toomin, who assigned the case to Mr Webb, raised the possibility that Smollett could be charged again.
According to the judge and attorneys, double jeopardy does not apply because Smollett was never prosecuted.
In his news release, Mr Webb said he concluded that prosecuting Smollett was “in the interest of justice” for a number of reasons, including the extensive details of Smollett’s false account as well as the resources that the police department threw at the investigation.
When the first indictment against Smollett was returned, Mr Webb wrote, the state’s attorney’s office had concluded that the evidence in the case was “strong”. But the office failed to offer any new evidence to explain why authorities dropped the charges just a few weeks later, Mr Webb said.
Further, Mr Webb took issue with an assertion in a news release issued when the charges were dropped that Smollett had not received special treatment and that the case was resolved “under the same criteria that would be available for any defendant with similar circumstances”. Mr Webb asked for but never received any examples of other such cases, he wrote.
The city has sued Smollett, seeking reimbursement of more than $130,000 for overtime paid to officers who were involved in investigating Smollett’s report. Smollett’s attorneys have said the city should not be allowed to recover costs from Smollett because it accepted $10,000 from the actor “as payment in full in connection with the dismissal of the charges against him”.
It was not immediately clear what sentence Smollett faces if convicted. When he was originally charged with disorderly conduct, it was reported that he could be placed on probation or sent to prison for one to three years per count.
Smollett’s case has become an issue in Ms Foxx’s bid for a second term. Those looking to unseat the first black woman to hold the county’s highest law enforcement position, have blasted her handling of the matter as haphazard and indecisive.
They say it indicates she has bad judgment and favors the rich and powerful in deciding who will be prosecuted.
Ms Foxx’s campaign committee issued a biting statement on Tuesday referring to former FBI Director James Comey’s decision to briefly reopen an investigation into Democratic candidate Hillary Clinton’s email shortly before the presidential election in 2016 that Donald Trump would win.
“What’s questionable here is the James Comey-like timing of that charging decision” which can only be interpreted as the further politicisation of the justice system, something voters in the era of Donald Trump should consider offensive,” the statement from Friends for Foxx said.
Smollett’s attorney also raised political implications.
The attempt to re-prosecute Smollett “on the eve of the Cook County State’s Attorney election is clearly all about politics, not justice,” she said.
Smollett, 37, has not had any notable film or television roles announced since his departure from the TV series was made public in April 2019. Producers have the option to bring him back during the sixth and final season but have said they have no plans to do so.
Empire has 10 episodes left. It is scheduled to return on 3 March.
Actor Jussie Smollett was indicted on Tuesday for a second time on charges of lying to police about a racist and anti-gay attack he allegedly staged on himself in downtown Chicago, renewing a divisive criminal case that drew worldwide attention last year.