At Smollett’s ruling Thursday afternoon, lawyers are expected to first argue before Judge James Lane over the actor’s request to overturn the ruling or give him a new trial.
Smollett’s attorney, Mark Lewis, presented dozens of arguments for the actor’s request last month, including the defense’s claim that he was improperly barred from asking potential jurors during the jury selection process. At the time, Lin decided he would only ask questions, not the defense or the prosecution.
If Lane refuses Smollett’s request or delays sentencing, sentencing will proceed. Smollett’s defense attorneys also said they intend to fight the ruling in the Court of Appeals.
Smollett, who is black and gay, told Chicago police that on a frigid January night, two unidentified men attacked him, shouting racist and anti-gay insults at him, pouring bleach on him and wrapping a noose around his neck.
Chicago police investigated the case as a possible hate crime but soon determined that the actor orchestrated the incident. They said he paid two brothers he knew from the Fox drama “Empire” to publicize the incident.
They said they faked punches, poured bleach on him, put a noose around his neck, and used racist and homophobic insults – because he asked them to.
In December, defense attorney Nene Uchi said he disagreed with the jury’s ruling and that the defense would appeal and win in an appeals court.
“He (Smollett) is 100% confident that this will be reversed on appeal,” O’Shea said. “Ultimately, we believe that justice will prevail. We do not believe that was done (in December) but we are absolutely confident that he will be acquitted and that he will be found innocent.”
The charge of disorderly conduct for falsely reporting a crime is a fourth-degree felony in Illinois, each punishable by up to three years in prison and a $25,000 fine. Lane will have the discretion to impose a simultaneous or consecutive sentence for each of the five counts.
Lane can also sentence Smollett to probation, parole, community service, compensation, or combination. A conditional release will be conditionally released but without prospective supervision.
Smollett has no previous criminal convictions. In part because of this, a prison sentence appears unlikely, a former Cook County prosecutor told CNN.
Another reason, former prosecutor Darren O’Brien said, was that Lane did not void Smollett’s bail after his conviction.
“If a person is eventually going to be taken into custody, they usually void the bail,” said O’Brien, who has written sentencing guides in Illinois published by the state bar association. “This is another indication that I doubt he will be imprisoned.”
Special Prosecutor Daniel Webb did not recommend a prison sentence before the hearing, but confirmed in December after Smollett’s conviction that the actor “wasn’t repentant at all” when he testified during the trial.
CNN legal analyst and criminal defense attorney Joe Jackson previously told CNN that a judge might give Smollett probation, but Smollett “exposed himself to a prison sentence” when he testified in court.
“When you testify in a case, the judge now understands what you said,” Jackson said. “What Josie Smollett said was flatly rejected by that jury. The jury didn’t buy what he was selling. It wasn’t lost on the judge. I came into the courtroom and fabricated it.”
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Smollett was initially indicted in March 2019 on 16 counts of disorderly conduct offenses. But the Cook County District Attorney’s office, Kim Fox, abruptly dropped all charges weeks later, saying he had done community service, would not get his $10,000 bond back, was not a danger to the community and had no prior felony.
City says he wants to offset the cost of the investigation
Court documents show that the city of Chicago sued Smollett in April 2019 after the actor refused to pay $130,106.15 to the city for a police investigation. Smollett filed a counterclaim in November 2020.
The Chicago Department of Law noted in the city’s lawsuit that more than two dozen police officers and investigators spent weeks working on the Smollett case in 2019, resulting in 1,836 overtime hours.
After Smollett’s conviction in December, the city said it intended to pursue the lawsuit.
CNN’s Eric Levinson contributed to this report.