The state rested its case at Jussie Smollett's trial Thursday after key testimony from two brothers who said the former Empire actor plotted a racist and anti-gay attack on himself in downtown Chicago and paid them to carry it out.
After a three-day presentation of evidence, special prosecutor Dan Webb told the presiding judge Thursday evening that the prosecution was done. The defence began its case immediately, calling, among others, an emergency room physician who saw Smollett after the purported attack.
Judge James Linn told jurors there would be no testimony Friday, saying he expected they would begin deliberations no later than Tuesday.
The physician, Dr. Robert Turelli, testified he treated Smollett after he went to a hospital early on Jan. 29, 2019, telling Turelli he'd been attacked, punched and kicked. Turelli said Smollett had some bruises and scratches but no serious injuries.
Before the state rested Thursday, Smollett's lawyer worked to discredit the brothers' accounts, suggesting they attacked Smollett because they didn't like him, and tried to get him to pay them each $1 million US not to testify that he staged the assault.
Defence attorney Shay Allen suggested the brothers were motivated to accuse Smollett of staging the hoax because they disliked the performer — who is gay and Black — and then saw an opportunity to make money.
Olabingo Osundairo's testimony echoed the account his brother, Abimbola Osundairo, gave on the witness stand a day earlier, including that Smollett wanted the brothers to douse him with gasoline and put a noose around his neck, and that Smollett gave them a $100 bill to buy the supplies and paid them with a $3,500 check.
Olabingo 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," an apparent reference to then-President Donald Trump's slogan "Make America Great Again." Osundairo believed the plan was to publicize the attack on social media, not to involve police, he said.
They opted to pour bleach on Smollett, 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.
Osundairo also addressed the defence 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.
Smollett, 39, is charged with six counts of felony disorderly conduct for making what prosecutors say was a false police report about the alleged attack on Jan. 29, 2019 — one count for each time he gave a report — to three different officers. The class 4 felony carries a prison sentence of up to three years, but experts have said if Smollett is convicted he likely would be placed on probation and ordered to perform community service.
Olabingo Osundairo also denied a white person was involved, or that he and his brother even wore masks or makeup to make it appear they were white. In statements that were widely ridiculed because the brothers are Black, Smollett had said he saw pale or white skin around the eyes of one of his masked attackers.
During cross examination, 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. Osundairo responded "No sir" to both.
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In follow-up questioning by Webb, 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.
Olabingo Osundairo told jurors he talked to police without a promise of immunity or under any sort of favourable deal. He added: "It was simply just to get the truth out of what happened that night."
Smollett's legal team needs to cast doubt on the brothers' damaging testimony, but it isn't easy. Abimbola Osundairo stuck with his story during cross-examination, while also denying he had a sexual relationship with Smollett or that he asked the actor to hire him. And much of what the Osundairos have told jurors about that night appears to be corroborated by video and other evidence.
Smollett's legal team asked Olabingo Osundairo about a previous felony conviction, which he testified 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 said the guns belonged to Abimbola Osundairo.
The defence 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.
Abimbola Osundairo, an aspiring actor, said he and his brother agreed to their roles in the fake attack because he felt indebted to Smollett for helping him with his acting career.