CHICAGO — Two brothers stand at the center of the case that prosecutors will lay before jurors when the trial of Jussie Smollett begins this week.
The former “Empire” actor contends he was the victim of a racist and homophobic assault in downtown Chicago on a frigid night in January 2019. The siblings, who worked with him on the TV show, say he paid them $3,500 to pose as his attackers.
Smollett is accused of lying to police about the alleged attack and has been charged with felony disorderly conduct. A class 4 felony, the crime carries a sentence of up to three years in prison but experts have said it is more likely that if Smollett is convicted he would be placed on probation and perhaps ordered to perform community service.
Whether the Black and openly gay Smollett testifies remains an open question. But the siblings, Abimbola and Olabinjo Osundairo, will take the witness stand where they are expected to repeat what they have told police officers and prosecutors — that they carried out the attack at Smollett’s behest.
Jurors also may see surveillance video from more than four dozen cameras that police reviewed to trace the brothers’ movements before and after the reported attack, as well as a video showing the brothers purchasing a red hat, ski masks and gloves from a beauty supply shop hours earlier.
Smollett’s attorneys have not spelled out how they will confront that evidence and the lead attorney, Nenye Uche, declined to comment. But there are clues as to how they might during the trial, which starts with jury selection Monday in a Chicago courtroom. It is expected to last a week.
Buried in nearly 500 pages of Chicago Police Department reports is a statement from a woman who lived in the area who says she saw a white man with “reddish brown hair” who appeared to be waiting for someone that night.
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.”
Her comments could back up Smollett’s contention that his attackers draped a makeshift noose around his neck. Further, if she testified that the man was white, it would support Smollett’s statements — widely ridiculed because the brothers, who come from Nigeria, are Black — that he saw pale or white skin around the eyes of one of his masked attackers.
One of the defense attorneys, Tina Glandian, suggested during a March 2019 appearance on NBC’s “Today” show, that one of the brothers could have used white makeup around his eyes to make Smollett believe he was white. To address skepticism on the jury, Glandian could ask the brothers about a video she talked about on the program that she said shows one of them in whiteface reciting a monologue by the Joker character from a movie.
Given there is so much evidence, including the brothers’ own statements, that they participated in the attack, it is not likely that Smollett’s attorneys will try to prove they did not take part. That could perhaps lead the defense to contend that Smollett was the victim of a very real attack at the hands of the brothers, perhaps with the help of others, who now are only implicating the actor so prosecutors won’t charge them, too.
They $3,500 check could be key. While the brothers say that was their fee to carry out the fake attack, Smollett has offered a different and much more innocent explanation: that he wrote the check to pay one of them to work as his personal trainer.
“I would assume the defense is going to zero in on that,” said Joe Lopez, a prominent defense attorney not involved with the case. “If they texted messages regarding training sessions, checks he (Smollett) wrote them for training, photographs, the defense would use all of that.”
What they will almost certainly do is attack the brothers’ credibility — an effort that will certainly include a reminder to the jury that the brothers are not facing the same criminal charges as Smollett, despite admitting to taking part in the staged attack.
“Everything Smollett is responsible for, they are responsible for,” said David Erickson, a former state appellate judge who teaches at Chicago Kent College of Law and who is not involved in the case. “They participated and they walk away? What the hell is that?”
Erickson said he expects prosecutors to confront that issue before Smollett’s attorneys do, as they won’t want to appear to be trying to hide something.
Finally, Smollett’s career could take center stage. On one side, prosecutors could make the same point that then-Police Superintendent Eddie Johnson made when he announced Smollett’s arrest in 2019: that Smollett thought the attack would gain him more fame and get him a raise on a hit TV show.
But Lopez said the defense attorneys might ask the jury the same question he has asked himself.
“How would that help him with anything?” he asked. “He’s already a star.”