Jussie Smollett Loses Attempt to Get Case Thrown Out on Double-Jeopardy Grounds

Jussie Smollett’s new criminal charges will have him in court, as they do not violate his right against double jeopardy.

via Chicago Tribune:

The controversial end to Smollett’s case last year — in which the actor entered an informal arrangement to forfeit his $10,000 bond, with no admission of wrongdoing, in exchange for his charges being dropped — does not count as criminal punishment, Judge James Linn ruled.

“You cannot have any criminal penalty, whether it’s jail, probation, conditional discharge … none of that can be ordered on the innocent or presumed innocent or the unadjudicated,” Linn said in denying the defense’s request to throw out the case.

In addition, Linn noted Smollett’s new case was brought after a different judge, Michael Toomin, ruled that the first prosecution was void in its entirety. That was because Cook County State’s Attorney Kim Foxx improperly recused herself, Toomin said last year. The new case was brought by veteran attorney Dan Webb, whom Toomin appointed special prosecutor.

With Linn’s ruling, Smollett remains mired in legal drama on many fronts, including a lawsuit brought by the city of Chicago, which is seeking to recoup the costs of the police investigation of the alleged hoax. The actor participated in the Zoom hearing via audio from Los Angeles.

The legal principle of double jeopardy protects defendants from being tried twice for the same crime — but in general, it only kicks in when someone begins a trial or pleads guilty, according to legal experts.

Prosecutors were quick to point out Friday that jeopardy had never “attached” to Smollett’s first case.

Smollett’s attorney, Tina Glandian, argued that the conclusion to Smollett’s case, while unusual, was similar to a pretrial diversion or deferred prosecution program, which were arguments also made by Cook County prosecutors in the aftermath of the case’s dismissal.

And Smollett entered into the agreement with the expectation that if he held up his end of the bargain, it would close the book on his case, Glandian said.

“This money was a fine, it was a penalty that he had to pay in order to resolve this matter, it’s something he agreed to do while maintaining his innocence,” she said.

Double jeopardy protections bar defendants from being punished twice, Glandian pointed out, and the $10,000 bond forfeiture counted as punishment even without a guilty plea.

But that money was paid voluntarily in exchange for dropping the charges — not as a condition of any formal plea agreement or because a judge ordered it as a sanction, argued Sean Wieber of the special prosecution team.

And actual deferred-prosecution programs have conditions far more involved than what Smollett did, including a year of supervision, full restitution and regular court dates.

“We know he didn’t participate in (deferred prosecution) and instead they say he effectively complied,” Wieber said. “But effective compliance is no compliance at all, because there was no actual enrollment.”

In all, the informal nature of Smollett’s agreement with the previous prosecutors offered him “zero certainty of finality,” Wieber said.

In declining to toss out the charges, Linn, echoing many observers before him, said he had never seen anything like what happened the day Smollett’s first charges were dropped.

“I don’t know exactly how to describe it,” he said. “I’ve never quite seen a transcript (or) anything like that. Perhaps clarity will come about that at some later date, there are maybe other people to address that … what didn’t happen is that double jeopardy attached to that proceeding.”

A special Cook County grand jury indicted Smollett in February on six counts of disorderly conduct alleging he orchestrated a racist and homophobic attack on himself in downtown Chicago in January 2019.

The allegations were similar to charges brought by Foxx’s office last year. Foxx had recused herself from overseeing the prosecution, revealing she’d had contact with a member of Smollett’s family early in the investigation at the request of Tina Tchen, Michelle Obama’s former chief of staff.

But in appointing attorney Dan Webb as special prosecutor last year, Toomin wrote that Foxx botched the recusal by handing the reins to her top deputy. Because the recusal was invalid, the entire process played out without a real prosecutor at the helm, he wrote.

It seems like Jussie and his attorneys are throwing everything at the judge to make this case go away…everything except the truth.