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 On The Eve of Sentencing, Jussie Smollett Requests A New Trial 

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Michael Santos

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In December 2021, a jury found Jussie Smollett guilty of lying to police about a hate crime he staged against himself. Now, on the eve of his sentencing hearing later this month, Smollett’s lawyers are demanding a new trial. 

Smollett and his attorneys argue that the court made multiple errors at trial, and during the pretrial process that led up to the trial.


The facts that led to Smollett’s conviction on five criminal counts bear recapping.


Smollett’s case stems from reports he made to police in January 2019. Smollett claimed that strangers assaulted him during a late-night outing in Chicago, where his attackers put a noose around his neck and used racial and homophobic slurs against him. Many people were immediately outraged at the supposed hate crimes perpetrated against Smollett.

The ensuing police investigation revealed that Smollett concocted the story for financial motives and that he recruited brothers Abimbola and Olabingo Osundairo to stage the attack. First, the police arrested the Osundairo brothers, discovering they were Smollett’s friends. An arrest of Smollett followed.

Police and prosecutors claim that Smollett recruited these friends to stage the attack to generate publicity he could use to negotiate a more extensive compensation package and advance his acting career. 

To this day, on the eve of sentencing, Smollett denies this. He faces up to 3 years in state prison at sentencing.


Smollett’s motion for a new trial claims that the court violated his rights at various trial and pretrial phases, including during the jury selection process.

Smollett’s lawyers filed an 83-page motion for a new trial based on the violation of their client’s constitutional rights when, among other things, the judge prevented defense lawyers from actively participating in jury selection.

Specifically, the defense team complains about the judge not letting them question potential jurors individually to establish their impartiality, a crucial element in a fair trial. The defense argues that the issue of impartiality is even more critical in a high-profile case like this one.

One specific example of irregularity during jury selection is an instance when, during voir dire, a juror informed the court that she has several former and current family members in law enforcement. The defense team would have liked to ask the juror some follow-up questions to ascertain potential bias in favor of the police and the prosecution. But the court did not inquire further into her statements and did not allow Smollett’s to do so.

What is the voir dire during jury selection?

Voir dire is a process to select a fair and impartial jury, allowing the parties to examine the jurors to ensure they are fit to serve. Often during voir dire, the lawyers question the jury panel. Voir dire aims to ensure that jury members have no biases jeopardizing the trial.

Another factor affected the voir dire process, Smollett claims. Defense lawyers also complain that jury selection was not impartial because prosecutors used impermissible race factors in selecting jurors. Finally, they complain about the judge closing the courtroom, wrongfully barring the media and public.

As expected in criminal appeal papers or new trial motions, Smollett’s filing argues that prosecutors did not present enough evidence to meet the criminal legal standard of proof beyond a reasonable doubt

What does it mean to prove beyond a reasonable doubt?

Proof beyond a reasonable doubt leaves a juror firmly convinced the defendant is guilty. Criminal law does not require proof that dissipates all possible doubt. Prosecutors must convince jurors that there is no other reasonable explanation from the evidence presented at trial.

Specifically, the defense motion states that the prosecutors’ evidence was: 

“insufficient and inconsistent so that no reasonable trier of fact could have found Mr. Smollett guilty beyond a reasonable doubt, and thus there is evidence that the jury verdict was contrary to the manifest weight of the evidence.”

In the alternative, the defense team asks the court to declare Smollett not guilty outright, rather than order a retrial: 

As such, the Defendant now respectfully requests that his convictions be vacated or in the alternative, that the Court grant the Defendant a new trial,” Smollett’s filing says.


Smollett’s filing comes about two weeks before his March 10, 2022 sentencing hearing. It is unclear whether the court will now reschedule the sentencing hearing or decide the motion for a new trial before Smollett’s sentencing. After all, if the court grants the motion, there would be no sentencing hearing right now.

Cook County’s Judge James Linn has indicated that he will allow cameras at Smollett’s sentencing on March 10th.

As previously noted in our blogs and videos, the current court schedule puts Smollett in a sort of bind. Typically, criminal defendants apologize, show remorse, and accept responsibility at the time of sentencing, hoping that the court becomes inclined to grant leniency. 

In light of his current motion for acquittal or a new trial, and his ongoing denials of any culpability, it is hard to decipher what approach Smollett and his team plan to take at his sentencing hearing. 


In an ideal world, the court would decide Smollett’s motion for a new trial or not guilty verdict before the sentencing hearing. The way the schedule is playing out at the moment, it is unclear whether Smollet can count on that. 

At this point, no one knows whether Jussie Smollett will have to serve time in prison. He is facing a possible sentence of three years in prison. On the one hand, Smollett is a non-violent, first-time offender. The sentencing judge has broad discretion to sentence him to probation, fines, hundreds of community service hours, and the like. 

On the other hand, many observers would like the judge to send a strong message and put Smollett behind bars for his disorderly conduct convictions. Smollett, they argue, should have known better than reporting fake hate crimes for financial gain, wasting law enforcement and judicial resources, and continuing to deny his responsibility or show remorse.

Like any criminal defendant, Smollett has every right to pursue all available legal avenues he believes are in his best interest, in consultation with his family and legal team.

Prison Professors, an Earning Freedom company, works alongside (not in place of) civil and criminal defense counsel to help clients proactively navigate through investigations and prosecutions. Our team also helps clients prepare mitigation and compliance strategies.

If you have any questions or are uncertain about any of the issues discussed in this post, schedule a call with our risk mitigation team to receive additional guidance.

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