Nearly three years after Jussie Smollett reported to police that he was the victim of a racist and homophobic attack, the ex-"Empire" actor took the witness stand Monday at his trial to defend himself against charges of staging a hoax.
Smollett began testifying about his account of what happened in January 2019 in an attempt to refute damaging testimony from two brothers who testified last week as the state's star witnesses. The brothers said Smollett orchestrated a hoax to get publicity, giving them $100 for supplies and instructing them to place a noose around his neck and yell homophobic slurs. They also said Smollett paid them $3,500 to carry it out.
Defense attorneys have suggested the brothers were motivated to accuse Smollett of staging the hoax because they disliked him and saw an opportunity to make money. They suggested that after the brothers, Abimbola and Olabinjo Osundairo, were questioned by police about the alleged attack, they asked Smollett for $1 million each to not testify against him at trial.
Smollett’s lawyers also have argued that Chicago police rushed to judgment when they brought charges against Smollett, and suggested a third person may have been involved in the attack.
Judge James Linn told jurors last week he expected they would begin deliberations no later than Tuesday.
Smollett, 39, is charged with felony disorderly conduct for what law enforcement and prosecutors believe was a false police report about the alleged attack. The Class 4 felony carries a prison sentence of up to three years in prison, but experts say if Smollett is convicted he likely would be placed on probation and perhaps ordered to perform community service.
Actor Jussie Smollett arrives at the Leighton Criminal Courthouse for day three of his trial in Chicago on Wednesday, Dec. 1, 2021.
Here is everything else that has happened during the trial so far.
Day 5: Smollett takes the stand, says
Smollett told the jury how he grew up in a close-knit family of six children and started performing as a child actor before getting more into music. He said he “came to terms with my sexuality” in his early 20s, when he got involved in charity organizations, including a group that fights AIDS in the Black community.
He said he auditioned for a role on “Empire” of a singer who is gay because he had never seen a Black man portrayed that way. By season five, Smollett said he was being paid $100,000 per episode.
Smollett said he met Abimbola Osundairo in 2017 at a club, where he learned Osundairo also worked on the set of “Empire.” He said the two men did drugs together and went to a bathhouse, where Smollett said they “made out." Over time, he said the two men did more drugs together and participated in sex acts together. Abimbola Osundairo testified last week that he and Smollett didn’t have a sexual relationship.
Smollett testified that he met Abimbola's brother, Olabinjo, but that they didn't speak and “he kind of freaked me out.” He said Abimbola Osundairo made it seem like the men needed to “sneak off” when they were together around his brother. Smollett said he never trusted Olabinjo Osundairo.
Smollett also testified Monday that he wrote a $3,500 check to a friend for nutrition and training advice, not as payment for the Osundairo brothers to help him stage a racist, anti-gay attack on himself. Asked by his defense attorney if he gave Abimbola Osundairo payment for some kind of hoax, Smollett replied: “Never."
"There was no hoax," Smollett said.
Brett Mahoney, who produced “Empire” in Chicago, testified earlier Monday that Smollett called him after the hate mail was sent to the set. “We were obviously all very upset about the letter,” Mahoney said, adding that law enforcement was contacted and the letter turned over to authorities. He said Smollett agreed to added on-set security, but didn’t want anyone following him home because he felt it was too intrusive.
Also Monday, security guard Anthony Moore said that around the time of the alleged assault, he saw a person on the ground at the end of the block and two men running, one of whom was white. Moore said he told police what he saw, but when he was later questioned by the special prosecutor he felt pressured to change his story. Moore testified that he signed a statement that said the person was “possibly” a Black man, but that he felt “pressure and threatened to put something out there that I didn’t see.”
Under cross-examination, Moore said he only saw the man for one to two seconds. He also said he thought the men were fooling around, and that the two men were laughing as they ran by him.
Jussie Smollett is accused of lying to police when he reported he was the victim of a racist, anti-gay attack in downtown Chicago nearly three years ago.
Day 4: State rests case, Olabinjo Osundairo describes 'crazy idea' to stage hoax
After a three-day presentation of evidence, special prosecutor Dan Webb told the presiding judge Thursday evening that the prosecution was finished. The defense began its case immediately, calling Brandon Moore, Smollett’s music manager at the time.
Olabinjo Osundairo took the stand earlier in the day to echo his brother Abimbola's testimony the day before that Smollett requested they play assailants in the allegedly staged attack.
Olabinjo Osundairo said Smollett told him he received hate mail at the TV studio in Chicago “and he had this crazy idea of having two MAGA supporters attack him."
They opted to pour bleach on Smollett, Olabinjo Osundairo said, because he wasn’t comfortable using gasoline. He said Smollett wanted his brother to do the punching, and that it should look like he fought back.
Olabinjo Osundairo also addressed the defense's contention that the brothers were driven by homophobia. He testified that he has nothing against gays and the jury was shown a photo of the siblings taking part in Chicago’s 2015 gay pride parade dressed as trojan warriors.
During cross examination, defense attorney Shay Allen asked Abimbola Osundairo, who worked as a stand-in on the Chicago set of “Empire,” if he tried to get a $5,000-per-week job as Smollett’s security and if after he was questioned by police and released he told Smollett he and his brother wouldn’t testify at his trial if they were each paid $1 million. Abimbola Osundairo responded “No sir” to both.
In follow-up questioning by Webb, Abimbola Osundairo said he never thought Smollett would go to the police to report the fake attack as a real hate crime. He said Smollett told him that he wanted to use it to generate media attention, and that he has never lied to Chicago police.
Olabinjo Osundairo told jurors he talked to police without a promise of immunity or under any sort of favorable deal. He added: “It was simply just to get the truth out of what happened that night.”
Smollett’s legal team asked Olabinjo Osundairo about his previous felony conviction, which he testified Thursday was in 2012, for aggravated battery. As a convicted felon he cannot legally possess a firearm, but police found several guns when they searched their home after the alleged attack. Both brothers agreed the guns belonged to Abimbola Osundairo.
The defense said the brothers lied about Smollett staging the attack to get out of trouble for possessing the firearms and heroin that was also found in the home.
Actor Jussie Smollett, center, arrives with his mother Janet, left, and other family members at the Leighton Criminal Courthouse for day three of his trial in Chicago on Wednesday, Dec. 1, 2021. Smollett is accused of lying to police when he reported he was the victim of a racist, anti-gay attack in downtown Chicago nearly three years ago. (AP Photo/Charles Rex Arbogast)
Day 3: Abimbola Osundairo testifies Smollett asked him, his brother to stage attack
Abimbola Osundairo testified Wednesday that Smollett asked him and his brother, Olabinjo, “to fake beat him up” and instructed them on how to carry out the alleged hoax in January 2019. Smollett planned a “dry run” and gave him a $100 bill to buy supplies for the staged attack, Abimbola Osundairo said.
Abimbola said he and his brother agreed because he felt indebted to Smollett for helping him with his acting career.
Abimbola Osundairo said that a few days prior to the attack, Smollett showed him some hate mail he said he received at the “Empire” studio. Jurors viewed the note, which included a drawing of a person hanging by a noose, with a gun pointed at the stick figure and the letters "MAGA."
He said a few days later Smollett sent him a text message asking to meet up “on the low,” which he took to meet in private about something secret. Abimbola Osundairo said when they met up, Smollett asked him “to beat him up” and asked if his brother could help.
“I was confused, I look puzzled,” Abimbola Osundairo said.
Abimbola Osundairo said that prior to the staged attack, Smollett drove the brothers to the spot where the attack would occur, and they decided the men should throw bleach on Smollett rather than the original plan to use gasoline. He also said Smollett said a camera in the area would record the attack.
He also told jurors Smollett instructed him to punch Smollett but “not too hard.” Once Smollett was on the ground, Abimbola Osundairo said Smollett said he should give Smollett “a bruise” and “give him a noogie” — or rub his knuckles hard on Smollett’s head.
Abimbola "Able" Osundairo, walks through the lobby of the Leighton Criminal Courthouse courtroom during a lunch break in the trial of actor Jussie Smollett Wednesday, Dec. 1, 2021, in Chicago. Osundairo is expected to testify in the trial of Smollett who is accused of lying to police when he reported he was the victim of a racist, anti-gay attack nearly three years ago, in Chicago.
Abimbola Osundairo testified that he and his brother had difficulty identifying a good spot for the staged attack, walking around in the early morning of that Jan. 29 in weather that Abimbola Osundairo described as “colder than penguin feet.”
According to Abimbola Osundario, when the brothers spotted Smollett at around 2 a.m., Abimbola Osundairo — as instructed earlier by Smollett — shouted a homophobic slur and his brother yelled, “this is MAGA country.”
After punching Smollett in the face and throwing the actor to the ground, they put a noose around his neck and threw bleach on him, then ran away, Abimbola Osundairo told jurors.
The next morning, as news broke of a hate crime against Smollett, Abimbola Osundairo said he texted a note of condolence to Smollett, also as instructed. It read: “Bruh, say it ain’t true. I’m praying for speedy recovery.”
Abimbola Osundairo testified that Smollett gave him a check for $3,500 and wrote on it that it was for a nutrition and workout program. But Abimbola Osundairo said the money was both for the program and for helping to stage the attack.
Actor Jussie Smollett asks photographers to move back as he arrives with his mother Janet, right, at the Leighton Criminal Courthouse for day three of his trial in Chicago on Wednesday, Dec. 1, 2021. Smollett is accused of lying to police when he reported he was the victim of a racist, anti-gay attack in downtown Chicago nearly three years ago. (AP Photo/Charles Rex Arbogast)
Earlier Wednesday, a Chicago police detective Kimberly Murray testified that Smollett appeared "upset" when he was told that a surveillance camera did not record the alleged assault because it was pointed away from the scene. Murray said she explained to the actor that the cover on the pod camera makes it impossible to know which way it is pointing.
Murray, who interviewed Smollett the morning of the attack, said he told her he had received a threatening phone call days earlier, but he refused to hand over his cellphone, which the detective said could help police piece together a timeline of what happened, and he wouldn’t consent to giving medical records or a DNA swab.
A detective who interviewed Smollett two weeks after the alleged assault — and after the brothers had been arrested — said Smollett started to change his story. Smollett told Robert Graves his attacker had “pale skin,” when he previously said that one was white. When Graves confronted Smollett about the discrepancy, Smollett said the attacker “acted like he was white by what he said.”
Graves also told Smollett the two brothers were in custody for the hate crime. “He said ‘It can’t be them, they’re black as sin,’ ” Graves recounted, saying he took that to mean the brothers’ skin is very dark.
Graves testified that during the Feb. 14 interview, Smollett said he would sign a complaint against the brothers, though his attorney stopped him from doing so. About 90 minutes later, Smollett sent one of the brothers a text message, Graves said.
“Brother... I love you. I stand with you,” the message read. “I know 1000% you and your brother did nothing wrong and never would. I am making a statement so everyone else knows. They will not get away with this. Please hit me when they let you go. I’m behind you fully.”
Jussie Smollett arrives at the Leighton Courts Building for the start of jury selection in his trial on Nov. 29, 2021, in Chicago. Smollett is accused of lying to police when he reported that two masked men physically and verbally attacked him, yelling racist and anti-gay remarks near his Chicago home in 2019.
Day 2: Prosecutors recount how Smollett orchestrated a hoax
Prosecutors’ case against Smollett focused on how Chicago police say they determined that what they initially believed was a horrific hate crime was actually a fake assault staged by the ex-“Empire” actor with help from the Osundairo brothers.
Taking the stand as prosecutors began their case against Smollett, former police detective Michael Theis said he initially viewed the actor as a victim of a homophobic and racist attack and that police “absolutely” didn’t rush to judgment as Smollett's defense attorney alleged during opening statements Monday.
Theis, who now is assistant director for research and development for the Chicago Police Department, said roughly two dozen detectives clocked some 3,000 hours on what they thought was a hate crime in January 2019. He said they were excited when they were able to track the movements of Abimbola and Olabinjo Osundairo, using GPS, cell phone records and video evidence. Police found no instance where they concluded the men were lying, he added.
"The crime was a hate crime, a horrible hate crime," Theis said Tuesday.
Olabinjo Osundairo, left, and Abimbola Osundairo arrive at the Leighton Criminal Courthouse in Chicago on Feb. 24, 2020. The brothers claim actor Jussie Smollett hired them to stage an attack on him.
Jurors were also shown surveillance video Tuesday of the brothers buying supplies, including a red hat they told police Smollett wanted them to wear to resemble supporters of then-President Donald Trump, and a piece of clothesline police said was later fashioned into the noose. Jurors also saw a still image from a video that Theis said showed Smollett returning home the night of the alleged attack, with the clothesline draped around his shoulders. The clothesline was wrapped around his neck when officers arrived, Theis said, leading detectives to believe Smollett may have re-tied it.
On Monday, Uche also suggested that a third attacker was involved. One area resident said she saw a white man with “reddish brown hair” who appeared to be waiting for someone that night, according to police reports. She told a detective that when the man turned away from her, she “could see hanging out from underneath his jacket what appeared to be a rope.”
Uche referenced the woman during his cross-examination of Theis, and Theis acknowledged that he saw that statement but did not send a detective to re-interview her. He said the woman had seen the man a few hours before the alleged attack and that “the rope was a different color.”
Uche also suggested the brothers were homophobic, asking Theis on cross-examination about a homophobic word one of the brothers used. Theis said there was a message containing a slur but that he doesn't know if that makes the man homophobic. Uche also asked Theis if he was aware one of the brothers attacked someone at the TV studio because he was gay.
“One individual said it happened, but I don’t know that it happened," Theis said.
Attorney Nenye Uche, left, and Jussie Smollett leave a hearing at the Leighton Criminal Courthouse in Chicago, July 14, 2021.
Day 1: Smollett's attorney says actor is a 'real victim'
Smollett's defense attorney Nenye Uche said Monday that Abimbola and Olabinjo Osundairo attacked Smollett because they didn't like him and that a $3,500 check the actor paid the men was for training so he could prepare for an upcoming music video – not as payment for staging a hate crime, as prosecutors allege. Uche also suggested a third attacker was involved and told jurors there is not a "shred" of physical and forensic evidence linking Smollett to the crime prosecutors allege.
"Jussie Smollett is a real victim," Uche said.
Uche made his opening statement after special prosecutor Dan Webb told jurors that the actor recruited the brothers to help him carry out the fake attack. "When he reported the fake hate crime that was a real crime,” said Webb. Webb also told jurors Smollett was unhappy about how the studio handled the letter he received that included a drawing of a stick figure hanging from a tree and "MAGA."
Uche countered that Smollett had turned down extra security when the studio offered it.
Webb said Smollett then “devised this fake crime,” holding a “dress rehearsal” with the two brothers, including telling them to shout racial and homophobic slurs and “MAGA.”
Uche portrayed the Osundairo brothers as unreliable, saying their story has changed while Smollett’s has not, and that when police searched their home they found heroin and guns. “They are going to lie to your face,” Uche told the jury.
Outside the courtroom, Smollett’s brother said it has been “incredibly painful” for the family to watch Smollett be accused of something he “did not do.”
Contributing: Maria Puente, Hannah Yasharoff, Jayme Deerwester, Pamela Avila and Charles Trepany USA TODAY; Don Babwin, Michael Tarm and Sara Burnett The Associated Press
This article originally appeared on USA TODAY: Jussie Smollett trial updates: Actor takes the stand, denies 'hoax'