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Prosecutors continued calling witnesses in the trial of ex-“Empire” actor Jussie Smollett, who is accused of staging a homophobic and racist attack in Chicago but whose defense attorney says is “a real victim” of a “real crime.”
The trial is expected to last about a week, but it could go longer as one of the brothers at the center of the prosecution's case testified Wednesday.
Defense attorneys will get a chance to cross-examine Abimbola Osundairo on Thursday when the trial resumes, with the judge saying that he now expects the trial to last into next week.
A lead investigator in the case, Michael Theis, testified Tuesday that brothers Abimbola and Olabingo Osundairo— who worked with Smollett on the Chicago set of “Empire” — detailed for police how the actor orchestrated the hoax.
Theis, who now is assistant director for research and development for the Chicago Police Department, said roughly two dozen detectives clocked some 3,000 hours on the investigation, rebutting a defense attorney's statement that they rushed to judgment.
Abimbola Osundairo took the stand Wednesday in the case, alleging that Smollett worked with the brothers on where and when to stage the attack, as well as providing details on what the actor instructed them to do in the lead-up to the incident, including where to approach him and giving them a directive not to bring cell phones to the scene.
Smollett, a Black and openly gay actor, reported to Chicago police that he was the victim of a hate crime that garnered national attention. Nearly three years later, Smollett faces a trial on charges that he staged the whole thing.
Smollett was charged with felony disorderly conduct after law enforcement and prosecutors said he lied to police about what happened in the early morning hours of Jan. 29, 2019, in downtown Chicago. He has pleaded not guilty.
Dan Webb has been named as special prosecutor in the case after Cook County State’s Attorney Kim Foxx’s office dropped the original charges filed against Smollett.
Twelve jurors plus two alternates were sworn in late Monday for a trial that Judge James Linn said he expects to take about one week. Cameras are not allowed inside the courtroom and the proceedings are not being livestreamed, unlike in other recent high-profile trials.
Judge Linn also says attorneys have made agreement not to speak to the media until the trial is over and a verdict is reached.
Jurors this week are expected to see surveillance video from more than four dozen cameras that police reviewed before and after the reported attack. And two siblings involved in the attack, the Osandairo brothers are expected to testify later this week
Whether Smollett will testify remains an open question.
Here's the latest from the courtroom: (Refresh for updates)
-After Bola Osundairo was done being questoned by the prosecution, the judge sent the jury home for the day following dinner, saying that cross-examination by the defense will start out the day on Thursday at 9:15 a.m.
-- Bola Osundairo’s testimony so far, has focused on his close relationship with Smollett.
He said because there wasn’t much work as an extra or a stand in, the Osundairo brothers formed a group called “Team Able” with friends. They developed diet plans and fitness plans for people. They also did fitness routines and stunts on social media.
Bola Osundairo said he did develop a plan for Smollett.
He said he never expected payment. Smollett was good to him, he testified.
-- "Bola" Osundairo said he and Smollett would often hang out together.
They would go to a clubs, a bathhouse in Boy’s Town and hang out and smoke weed at Smollett’s Streeterville apartment, he said.
He testified the pair became very good friends.
“I would call him my brother,” he said.
Osundairo said Smollett trusted him so much, the actor asked him to buy drugs for him, including marijuana and “mollies.”
-- Abimbola Osundairo, one of two brothers who said they helped Smollett stage the hoax, takes the stand.
-- After a brief but heated re-cross, the witness, CPD Detective Robert Graves, was excused and the judge called for an hour-long lunch break until approximately 1:55 p.m. CT.
-- In cross-examination of CPD Detective Robert Graves, lead defense attorney Nenye Uche hit hard at Graves’ testimony, asking how many victims he had ever encountered who were celebrities, touching on Smollett’s particularly strong desire for privacy because of his status. Graves said he didn’t know.
Uche also poked holes into Graves’ reports and testimony, showing that he did not make a record of Smollett’s comments as he testified, that he said the attackers “acted white,” but instead wrote that Smollett “now believes [the attacker] was white due to comments made.”
Uche also asked Graves whether Smollett was the detective on his own investigation, because Graves did not ask specifically whether he had spoken to Bola in the hour before the attack, nor did he ask whether Smollett had been with the brothers in the days before. Uche made the point that because they’re friends, that’s nothing spectacular.
In re-direct, Graves confirmed that he had worked about 45 hours straight in the two-plus days he had worked on the case, in an apparent effort to show why there might have been slips in his reports.
-- The state’s fifth witness, CPD Detective Robert Graves, was called to the stand after the morning break. He was assigned to the case with his partner, the fourth witness Detective Kimberly Murray, in the early morning hours of January 29, 2019.
Graves recounted the two interviews they had with Smollett, at the hospital and later in the unmarked police car as they drove around to do a walk-through of the incident. He testified that he and Murray handed over the case a couple days later to Theis and Vogenthaler because they worked daytime hours and had more resources available than nightside officers and detectives.
During direct examination, special prosecutor Sean Wieber asked Graves about his re-interview of Smollett on February 14, while the brothers were in custody at a separate location. Graves said he was called in on his day off to do the interview because supervisors thought it would help feel more comfortable.
Graves testified that there were some inconsistencies during Smollett’s reinterview, namely about the race of the attacker he saw. Graves said initially that Smollett said the attacker’s race was “male white,” and during the February 14 reinterview said he was “pale-skinned.” Graves said he reminded Smollett said he was a “male white,” and never said “pale-skinned.” Graves testified that he was upset “that he was now changing the story.”
Graves went on to say that Jussie said, “I meant that he acted like he was white by what he said and how he acted,” referring to the slurs and MAGA reference.
Graves said he did not tell Smollett in that Feb. 14 re-interview that the brothers were in custody but that Smollett realized in the context of questioning that they had been arrested. Graves said Smollett told him he didn’t know Olabinjo, but that Abimbola was his friend for about a year and personal trainer for about three to four weeks, and that they hung out and didn’t have issues between them.
Graves said Smollett said that the attackers couldn’t have been the brothers because the brothers were “black as sin.” Graves testified that Smollett had said he’d cooperate and help find the individuals who attacked him, and that he would agree to signing a criminal complaint against the brothers for the attack, but to his knowledge never did.
Graves testified that Smollett never told him that he had met up with the brothers in the days before the attack, nor had he told Graves that he had driven around the area of the attack with the brothers in the days prior.
Graves also testified that Smollett had ended up providing redacted cell phone records, and that he later determined some of the calls were between Smollett and Abimbola Osundairo.
At the end of direct examination, Wieber asked Graves how many victims in his 30 years working in law enforcement refused to provide a cell phone and medical records upon request. He said “one,” and stood up to point to Smollett in the court room.
-- Court takes a break before the state’s fifth witness is called.
-- One of the Osundairo brothers has arrived at the Cook county Courthouse with his attorney.
-- Heather Widell for the defense began her cross-examination asking Murray where she went to medical school. She said she did not attend medical school, at which point Widell began a series of questions working to suggest that the CPD did not take Smollett’s injuries seriously, because Murray had testified that she found his injuries to be minor.
The cross-examination was riddled with sustained objections. During re-cross, Widell’s questioning touched on the fact that despite Smollett’s attempt at privacy surrounding the incident, employees at Northwestern Hospital were suspended for trying to look up his medical records and that the Chicago Police Department had leaked information on the case. Objections were sustained before she could finish her questions. The witness was excused shortly after.
-- Trial began promptly with special prosecutor Sam Mendenhall calling CPD detective Kimberly Murray as the state’s fourth witness.
Murray testified that she had been assigned to the case in the early hours after the attack occurred, and that she and her partner, Detective Robert Graves, had gone to the staircase where the attack occurred prior to meeting Smollett at Northwestern Hospital. She testified she met with him for about 50 minutes between doctors treating him that morning. Mendenhall showed the jury photographs taken of Smollett’s face, and she described the injuries as minor: abrasions, scratches, redness around his neck.
Murray recounted what Smollett said the attackers said to him at the time of the attack: “Empire faggot, Empire nigger” to which he replied, verbatim, “What the fuck did you say to me?” She then said that he said they told, verbatim, “This is MAGA country, nigger.”... and that he was struck two times in the face, knocked to the ground, kicked in the back and rib area. She said he had said that he felt a tugging around his neck, and the attack stopped suddenly and the attackers fled. He found on his way up the stairs, she said he told him, that a rope was placed around his neck fashioned into a noose.
Murray also testified that she had driven with Smollett and her partner to review what happened that night, since it was too cold the following night to do a walk-through.
She testified that Smollett had told her about the hate mail and a phone call he received a few days earlier from a blocked number, someone making similar hateful comments.
--Defense attorneys cross examined Theis, suggesting the investigation ignored some facts and some witnesses to better suit their narrative. They are also trying to discredit the Osandairo brothers who are expected to testify later this week.
--After lunch, Judge Linn reminds the attorneys of an agreement they made not to speak to the media until the trial is over and a verdict is reached. The reminder made necessary by an activist who came to the lobby to speak to reporters on Smollett”s behalf. She was accompanied by a member of his PR team. “Nobody is going to infect this trial,” Judge Linn said.
--Det. Theis testified that video, cell phone, GPS and other evidence all pointed to a conspiracy between Jussie Smollett and the Osandairo brothers to fake a hate crime in Streeterville on January 29. Defense is set to cross-examine Det. Theis next.
-- After 24 to 26 investigators spent more than 3,000 man hours looking into the case, Det. Michael Theis testified: “at the end of the investigation, we determined that the alleged hate crime was a staged event and it never happened.”
-- First witness by called prosecution in Smollett trial is Det. Michael Theis, the lead investigator on the Smollett case. When asked if there was a “rush to judgement,” Theis replied “absolutely not.”