Jussie Smollet's lawsuit for malicious prosecution against Chicago PD is thrown out by a federal judge - but the disgraced Empire actor can refile IF he is found not guilty in upcoming trial
Jussie Smollett, the former Empire actor alleged to have staged a racially motivated 'hoax' attack on himself in 2019, has had his lawsuit against the city of Chicago and some of its police thrown out.
US District Court Judge Virginia Kendall dismissed on Wednesday Smollett's claim he was the victim of a malicious prosecution over the allegedly staged hate crime.
She added his lawsuit cannot proceed at this time while he is being re-indicted by a special grand jury on charges relating to the same incident.
However, if the new criminal proceedings - brought by special prosecutor Dan Webb in February - end up ruling in Smollett's favor he is free to refile his suit.
Former Empire actor Jussie Smollett (pictured) had his lawsuit against the city of Chicago and some of its police thrown out
Brothers Abel (left) and Ola (right) Osundairo. They say they are prepared to testify for either side after revealing Smollett allegedly paid them to stage an attack on the actor
Judge Kendall said that should Smollett refile it would likely fail in light of the evidence in possession of Chicago police that he had staged the assault, including sworn statements by brothers Abel and Ola Osundairo, who say Smollett paid them.
'While Smollett alleges the statements were unreliable and self-serving, he ignores that there was additional evidence to corroborate the Osundairo brothers' statements, including suspicious texts between the parties and the deposit of a large check to Abel shortly before the attack,' Judge Kendall wrote.
Smollett's case centers around his original claim that two masked men attacked him as he was walking home in downtown Chicago in the early hours of January 29, 2019.
He said they made racist and homophobic insults, beat him and looped a noose around his neck before fleeing, and that at least one of his attackers was a white man who told him he was in 'MAGA country,' a reference to President Donald Trump´s campaign slogan, 'Make America Great Again.'
He also said they called him the N-word.
Nigerian brothers Abel and Ola Osundairo were then identified by police as the people he said attacked him. The pair knew Smollett and told the authorities he paid them to attack him in a staged incident to allegedly boost his celebrity profile and salary.
Smollett was then hit with a 16-count grand jury indictment and faced more than 50 years behind bars — until State's Attorney Kim Foxx suddenly dropped all the charges in March 2019.
A first-time offender, Smollett was let off with a $10,000 bail forfeiture and community service.
It was a decision that blindsided and outraged Chicago's former mayor Rahm Emanuel and former Chief of Police Eddie Johnson, who accused him of inflaming race relations in Chicago and wasting police time.
Smollett's sisters, Jurnee (left) and Jazz (right) accompany him to court in February
February - Jussie Smollett arrives at Cook County courthouse with his brother, Jocqui (left), Jojo (far left) and Jake (right) to face six felony counts of lying to police
The city sued Smollett, demanding he reimburse them for the $130,000 wasted investigating what they believed were bogus claims. That suit is also pending before Kendall in US District Court.
Smollett, who has all along insisted he is innocent, counter-sued, accusing the city and Johnson of malicious prosecution.
He lost his role on Empire and became a pariah in the showbiz world he was reportedly trying to ascend.
In February 2020, Smollett said he is willing to 'fight or die' to be cleared after pleading not guilty to renewed charges of 'lying to police' over his alleged hoax race attack.
In an exclusive video obtained by DailyMail.com the former Empire actor acknowledged the case is 'frustrating' but argued 'the truth is the best defense'.
Smollett, 37, alongside lawyer Tina Glandian, said: 'The truth is the best defense. The truth which they know nothing about.'
The actor returned to a Chicago courtroom on February 24 to plead not guilty to felony charges that he lied to police over a 'hoax' attack he was accused of making up in January 2019.
Probed on the charges, Smollett added: 'It is definitely frustrating but you just gotta, it's fight or die at this point, right. I don't claim to be innocent, I am innocent.'
Smollett pictured at Los Angeles airport with his lawyer Tina Glandian in February this year
Smollett was charged with six counts of felony disorderly conduct during the February 24 hearing.
His attorney, Tina Glandian, also submitted a motion to the circuit court to dismiss the case based on a double-jeopardy challenge, claiming that Smollett had already been punished in the original case by forfeiting his original $10,000 bond.
She said: 'He is holding up, we will get through this. We have faith that the system will eventually work.'
Moments after he arrived at court on February 24, Abel and Ola Osundairo - the two Nigerian brothers who say he paid them to attack him - showed up at the courthouse with their attorney.
The pair were prepared to testify for either side in the case and they want Smollett to 'tell the truth'.
On February 24, Smollett's attorneys filed a motion to dismiss the charges. He then pleaded not guilty across the board.
In March 2019, Smollett pleaded not guilty to 16 counts of the charge in the same courthouse, just weeks before the Cook County State's Attorney Kim Foxx's office abruptly announced it was dismissing the case, angering police and City Hall.
His attorney Tina Glandian issued a statement February 25 saying: 'The attempt to re-prosecute Mr Smollett one year later on the eve of the Cook County State's Attorney election is clearly all about politics not justice.'
There have been various rounds of civil litigation, but the cases have been delayed because it has been so difficult to identify an impartial prosecutor.
Special prosecutor Dan Webb was eventually brought in to examine the case.
The saga began on January 29, 2019 when it emerged that Smollett claimed he had been the victim of a racist, anti-gay attack.
At the time, it seemed he had been walking home from Subway in the middle of the night after returning home late on a delayed flight when he was approached.
He told police afterwards his attackers identified him from the show he was on, Empire, and called him both the N-word and 'f****t'.
He said they beat him, poured bleach on him then put a noose around his neck.
Smollett went back to his apartment where his friend, Frank Gaston, was. It was Gaston who insisted they call police.
When officers arrived, the actor refused to hand over his phone.
He went to the hospital to be checked over but had no major injuries.
The Chicago Police Department vowed to investigate the incident with all its might, and celebrities around the world rushed to share their support of Smollett.
He became a household name almost overnight.
But as the police investigation progressed, leaks began from within the police department that all may not have been as it seemed.
As the controversy grew, Smollett - determined to make his case - went on Good Morning America where he cried and insisted he was telling the truth.
By then, Chicago PD had released grainy surveillance camera footage of two men walking near the scene of the incident itself which was among the only part of his journey not captured on Chicago's vast network of security cameras that night.
Smollett unequivocally identified the two men in the grainy footage as his attackers.
Neither their faces nor skin color could be made out in it.
Unbeknownst to him while he was conducting his GMA interview, the Chicago PD was building a case against him.
They had identified the people in the video as the Osundairo brothers and had backed-up their belief by tracking the pair's movements in the days and hours both before and after the incident.
Smollett was eventually arrested and charged with suspicion of lying to police.
The brothers flew to Nigeria within hours of the January 29 incident and missed the media storm which followed.
When they landed back in the US, police investigators were waiting to question them.
After hours of secret interviews, they told cops that Smollett had paid them to carry out the attack as part of an elaborate hoax.
Smollett was then arrested.
In an extraordinary press conference afterwards, then police chief Eddie Johnson accused him of inflaming race relations in Chicago and of wasting police time.
He bellowed that Smollett had tried to leverage the 'attack' to get his bosses at Empire to pay him more.
Despite police outrage, prosecutor Kim Foxx was quiet.
The case then went to a grand jury which returned a stunning, 16-felony indictment that would have put Smollett behind bars for more than 50 years if he had been convicted.
By then, Foxx had informally recused herself from the case.
Her conflict of interest was that in the early days of the police investigation, she intervened at the request of Smollett's family and their friend - Time's Up CEO Tina Tchen - who wanted the FBI to take over the police investigation.
They said they were worried by the number of leaks that had come from the Chicago PD and asked Foxx to help. She said she would try.
After the grand jury indictment, the case stalled for a few weeks.
Then, in March 2019, Foxx's deputy Joseph Magats - who had taken over - announced the decision that the charges against Smollett had been dropped.
Foxx had intervened again, it emerged, and pointed to what they called 'alternative prosecution' whereby Smollett, a first-time offender, was let off with a $10,000 bail forfeiture and community service.
There was outrage and calls for Foxx to be investigated herself for prosecutorial misconduct.
As judges and special prosecutors for that task were tossed around, the city came out swinging in civil court. They sued Smollett, asking him to reimburse them for all the money they said they'd wasted investigating what they believed were bogus claims.
Smollett counter-sued, accusing the city and Eddie Johnson of malicious prosecution. He lost his job on Empire.
Webb was appointed in August 2019 to investigate why Foxx's office had dropped the charges.
He himself faced criticism and claims of another conflict of interest when it emerged he had donated $1,000 to Foxx's re-election campaign once.
Mayor Lori Lightfoot said he had to be prosecuted 'to the fullest extent of the law'.
'He needs to face the charges.
'He committed a crime, and he needs to be prosecuted to the fullest extent of the law, and we are going to continue to aggressively make him accountable for the wasted police resources that went into investigating what turned out to be a total hoax,'
JUSSIE SMOLLETT TIMELINE
Jussie Smollet's lawsuit for malicious prosecution against Chicago PD is thrown out by a federal judge - but the disgraced Empire actor can refile IF he is found not guilty in upcoming trial
![Jussie Smollet's lawsuit for malicious prosecution against Chicago PD is thrown out by a federal judge - but the disgraced Empire actor can refile IF he is found not guilty in upcoming trial]()
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April 23, 2020
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