A brewing battle over Chicago's demand that Jussie Smollett recoup the city more than $130,000 for an investigation into his report of a racist, anti-gay attack and the "Empire" actor's apparent determination not to pay it could ultimately land in a civil court, where a jury could have to answer the question that was supposed to be answered in criminal court: Was the attack staged or not?
The first legal skirmish in the wake of a shocking decision by Cook County prosecutors earlier this week to drop all criminal charges against Smollett could come as soon as the end of next week, the deadline for Smollett to send in a money order or cashier's check for $130,106 — plus 15 cents. His legal team has signaled he doesn't intend to pay, which will likely prompt the city to sue Smollett in Cook County Circuit Court.
Mayor Rahm Emanuel, who has said the false claims by Smollett damaged the city's reputation, denounced Tuesday's dismissal of 16 felony counts against Smollett as a "whitewash." Emanuel said Thursday, as his law department chief sent a letter to Smollett and his attorneys seeking payment for overtime worked by detectives and officers who looked into the actor's claim, that demanding he pay would help establish that he did in fact orchestrate the attack.
Smollett's lawyers shot back Thursday, saying it is city officials "who owe" Smollett "an apology — for dragging an innocent man's character through the mud." They added: "Jussie has paid enough."
The downside of paying for Smollett is that it would be perceived as an admission of guilt, and he's still adamant he's told the full truth about the incident that he says happened Jan. 29 in downtown Chicago. Prosecutors and police say the evidence is clear that he concocted it as a publicity stunt. The upside of paying now is that there would be no drawn-out process keeping the question of whether he's lying or not in the headlines.
Among the potential downsides for the city: It could end up spending far more in legal fees than it's asking Smollett to recoup and can ever hope to get from him. If he doesn't pay the around $130,000 now, the municipal code stipulates that the city could then triple the amount it's demanding from Smollett — to more than $390,000.
And while the current mayor seems committed to seeing the process through, his successor may not be. Emanuel's in his last days in office. A new mayor will be elected Tuesday.
With charges dropped, Smollett seemed to dodge what would have been emotionally grueling criminal proceedings, culminating in a trial with days of public testimony. All that could be in his future again if he doesn't pay the fine by next week and the city, as expected, files a lawsuit in response.
The issue on which the outcome of a civil trial would hinge would be the same: Does the evidence show that Smollett, who is black and gay, made up the attack about two masked men shouting slurs, wrapping a rope around his neck and pouring a substance on him?
At a civil trial, much of the same evidence would be on display. But to the city's advantage, the threshold of proof will be much lower than it would have been for prosecutors. The city won't have to prove beyond a reasonable doubt that Smollett staged the attack, only that it's more likely true than not true that he did, said Larry Hyman, a Chicago attorney with no ties to the case.
The spokesman for City Hall's law department, Bill McCaffrey, wouldn't spell out exactly how the city would respond if Smollett doesn't pay next week, saying the city "is not committing to any future legal actions."
The city has sought to reclaim money before over reports that were purportedly false — and succeeded.
A University of Iowa physician, Gary Hunninghake, reported that he was attacked and stabbed while jogging in Chicago in 2010. After contradictions in his account, he eventually conceded he'd stabbed himself. A year later, he was ordered to pay more than $15,000 to reimburse the city for costs of the investigation.