The Empire star is arguing he shouldn’t have been charged with felony disorderly conduct in December 2021 because prosecutors made a deal to dismiss the first indictment.
Smollett’s attorneys filed legal documents with Illinois Supreme Court detailing the deal, which involved him doing community service and forfeiting his bond in return for charges being dropped.
The actor is taking his appeal to the state’s highest court after it was previously denied by the Appellate Court of Cook County.
Smollett was jailed in 2021 for staging an anti-gay, racist hate crime on himself and filing a false police report in January 2019.
‘What should have been a straightforward case has been complicated by the intersection of politics and public outrage,’ Smollett’s attorneys wrote in their Monday filing with the state’s highest court.
During the police probe into the incident, Chicago cops concluded that Smollett had hired brothers Abimbola and Olabinjo Osundairo to carry out the crime.
Smollett was convicted on five counts of disorderly conduct, sentenced to 150 days in jail, 30 months felony probation and $120,106 in restitution to the City of Chicago and a $25,000 fine.
However, he only served six days in jail before he was released on March 16, 2022 when his lawyer’s filed an appeal.
Now the Appellate Court of Cook County has denied the appeal Smollett may be required to complete the rest of his sentence.
During the original sentencing hearing Smollett shouted at the judge that he was innocent, warning that he was not suicidal and if he died in custody it was somebody else, and not him, who would have taken his life.
Smollett initially told Chicago police he had been accosted on a darkened street by two masked strangers.
According to his account of the attack, the assailants threw a noose around his neck and poured chemicals on him while yelling racist and homophobic slurs and expressing support for then-President Donald Trump.
The two assaulters were Nigerian brothers Abel and Ola Osundairo, who are black.
The brothers, who testified in court, told the jury Smollett hired them to fake the attack because he wanted to boost his celebrity profile.
Smollett later claimed that in the days before the stunt, when prosecutors said he and the brothers were rehearsing the attack, they were actually getting together to smoke marijuana.
Smollett shocked the court by claiming he ‘made out with’ and ‘masturbated’ with Abimbola Osundairo during a visit to a bathhouse.
The actor told the jury he thought the brothers staged the attack on him to try to scare him into thinking he needed bodyguards, and to give them the job.
Offering their point of view in a segment for a FOX Nation docuseries on Smollett’s web of lies the brothers returned to the scene of the ‘crime’ and share how they gave him a ‘noogie’ and poured bleach on his shirt before they ran away in the darkness of night.
The brothers took cameras to the spot where they sat on a bench waiting in the cold for Smollett at 2am on January 29.
‘We had no phones because he did not want us to bring any phones,’ Abimbola said. ‘He said, ‘So we don’t lose them.’ I don’t know if that’s really the reason, but you can deduce your own reason.’
He claimed Smollett told them to show up at exactly 2am, but ‘he was nowhere to be found, so we’re like ‘Damn, what do we do?’
‘We had no way of contacting him, he had no way of contacting us.’
At that point, his brother interjected to say that they were waiting for Smollett for about four minutes ‘but it felt like forever.’
‘Because it was cold as balls,’ Abimbola explained.
In the aftermath, the brothers said they were dumbfounded by Smollett’s public remarks about the experience.
Speaking about how the actor consistently lied and tried to play innocent after the hoax, the brothers told Fox Nation: ‘Insane. That’s when I really saw a different side of Jussie. Like, dude, really? This is when I knew that this dude was like a super villain.’
‘I thought he was a good actor, but I also thought this guy was a fraud,’ said Amibola of Smollett’s continued attitude toward the incident, which has remained unchanged since his 2021 trial.
‘This guy is really just sitting her, lying to these people. Lying through his teeth, and not caring,’ he said, referencing how Smollett ‘even shed a tear’ during a now widely seen interview with ABC News in which he denied the attack was a hoax.
Calling the actor ‘crazy’ for his continued devotion to the ruse, Amibola admitted that he feels betrayed by Smollett for not embracing his guilt, and taking the fall as he and his brother were forced to do.
I did feel betrayed by Jussie and what he had done. I didn’t know what to do – I wasn’t ready to say anything. Like, I was mute. And I didn’t want to say anything.’
They added that they felt Smollett just wanted to be ‘the poster child for activism,’ with Ambibola saying: ‘He wanted to be the hero for gay people, for black people.’
The two brothers ultimately testified against their one-time friend in court and were able to walk away from the incident with just two years’ probation and a small fine, after cooperating with police and unmasking the ruse.