It remains unclear whether Smollett will testify in his own defense.
Chicago, Ill. — The trial is expected to resume today of former Empire star Jussie Smollett, who is accused of conspiring with two brothers to orchestrate a fake hate crime against himself in January 2019, and then falsely reporting it to the police as real.
The prosecution rested its case on Thursday, and the defense called three witnesses on Thursday night, before Friday’s day off. The defense is expected to resume its case today. The jury is expected to get the case either today or Tuesday.
As the case nears its end, a few important questions remain: if the defense is right and the attack was not staged, why were brothers Abimbola and Olabinjo Osundairo, extras on Empire, waiting for Smollett near his downtown home at 2 a.m. on Jan. 29, 2019, and how did they know the actor would be out in subzero temperatures that morning? Did Smollett’s lead defense attorney overplay the menace of the Osundairo brothers in his opening statement? They didn’t seem particularly menacing on the witness stand. And, of course, will Smollett choose to testify in his own defense?
Last week, several Chicago police detectives testified for the prosecution that they initially assumed Smollett was the victim of a real hate crime when he first reported being attacked on his way home from getting a sandwich on a frigid Chicago morning. He said his attackers yelled racist and homophobic slurs at the black and openly gay actor, fought with him, poured bleach on him, hung a noose around his neck, and yelled out “this is MAGA country.”
The lead detective said it appeared to be a “horrible hate crime,” and as such it attracted intense interest from national media and politicians, including then-senator Kamala Harris. But after putting in more than 3,000 hours of work to solve the crime, often in bitterly cold weather, investigators eventually concluded that the alleged hate crime had actually been staged.
Did Smollett’s Defense Oversell the Menace of the Osundairo Brothers?
Both the prosecution and the defense seem to agree that the Osundairo brothers were involved in the alleged attack, and they are key witnesses for the prosecution, who say their version of events checks out with other evidence, including surveillance footage, phone records, text messages, and social-media posts.
But the defense has made the case that the Osundairos are anything but trustworthy. Rather, lead defense lawyer Nenye Uche argued, they are “sophisticated, highly intelligent criminals.” A search of their home turned up heroin, “weapons of war,” and multiple cellphones, he said.
“You are not going to like them,” Uche told the jury during opening statements, painting a picture of the brothers as menacing, dangerous, and organized criminals.
But when the Osundairos took the witness stand, they did not come across as particularly menacing or unlikeable. Olabinjo Osundairo was convicted of a felony battery nine years ago, but has since gone on to earn multiple degrees, including a master’s degree in finance, and to start a home-renovation business. Abimbola Osundairo helped Smollett to get recreational drugs from time to time, but the defense’s attempt to paint him as a well-connected drug dealer seemed to mostly fall flat.
As for the “weapons of war,” Abimbola legally had three guns, a shotgun, a 9-milimeter handgun, and a 22-caliber Mossberg rifle with a scope, in his family’s home. The heroin turned out to be a very small amount of cocaine. Investigators did find nine cellphones in the home, but prosecutors noted it shouldn’t be shocking to find nine phones in a family home where at least six adults are living.
Why Were the Osundairos Wandering Smollett’s Neighborhood in Subzero Temperatures?
Both of the Osundairos testified that they despise cold weather. Yet for the better part of an hour after midnight that Tuesday they were outside in subzero temperatures wandering Smollett’s neighborhood with a rope and a hot-sauce bottle filled with bleach. Olabinjo Osundairo testified that it was “colder than penguin feet.”
Prosecutors argue they were there because Smollett asked them to be, to stage a phony attack against him. Abimbola Osundairo testified that he felt indebted to Smollett for helping him to secure a more prominent stand-in role on Empire. Olabinjo Osundairo said he thought that if he participated he could “curry favor” with Smollett.
Prosecutors argued last week that Smollett’s motive for the staged attack was to prove a point to the leaders of the Empire studio who he believed hadn’t taken a hateful letter he’d received in the mail seriously enough. So far, prosecutors have ignored a previously alleged motive that Smollett thought the attack could raise his public profile and lead to a pay bump.
The defense has seemingly had a harder time explaining why the Osundairos waited in the cold for so long to jump Smollett, rough him up a little bit, but not steal anything from him. They’ve suggested that the Osundairos actually didn’t like Smollett because he is gay, and that the attack was a homophobic hate attack. They’ve also suggested that Abimbola Osundairo was at one point Smollett’s boyfriend — an allegation he denied — and that the Osundairos jumped Smollett to scare him, so Smollett would pay Abimbola $5,000 per week as his security guard.
To be fair, all of the alleged scenarios seem pretty far-fetched.
But if the defense is right and the attack wasn’t staged, they have yet to provide a satisfying explanation for why the Osundairos could have reasonably expected to encounter Smollett walking outside his apartment early on a frigid Chicago morning.
“If he had not told you in advance that he would be at that intersection at 2 a.m., would you have any way to know he would be there at that time?” special prosecutor Dan Webb asked Abimbola Osundairo. He said he would not.
Will Smollett Testify?
No doubt a lot of people would like to see Smollett take the stand in his own defense. His testimony could counter the stories of the Osundairo brothers and maybe help to explain evidence that doesn’t look good for him.
Why, exactly, did he pick up the Osundairos in his Mercedes on Sunday morning before the attack, take them to his neighborhood, and drive past what would be the eventual scene of the alleged attack multiple times? Surveillance video shows it occurred. The Osundairos said it was a dry-run for the attack. Does Smollett have another explanation?
And why, if he didn’t want to involve police after the alleged attack, did he keep the noose around his neck for more than a half hour before police arrived? Smollett told the first responding officer that he wanted to take it off, but he’d kept it around his neck because “I just wanted you all to see it,” according to the officer’s body-camera video.
Of course, putting Smollett on the stand would carry big risks. He’d be opened up to intense questioning by prosecutors, likely a tough sell to an actor whom his attorneys and publicist have described as private and media-shy.
But the defense so far has been rickety, often conducting flailing and unfocused cross-examinations, and regularly butting heads with Cook County Judge James Linn. At this point the defense might see Smollett’s testimony as the likeliest way to turn the tide in their direction.
Smollett is facing six disorderly-conduct charges for allegedly staging the hate crime. Should he be found guilty, he could face up to three years in prison but may also be let off with community service and probation.