Jussie Smollett appealing hate crime hoax conviction wasn't 'smartest' decision: expert

close

Video

Brothers break silence on Jussie Smollett hate crime hoax

Fox Nation revisits the infamous Jussie Smollett hoax with brothers Olabinjo and Abimbola Osundairo, who were hired to 'beat up' Smollett. The brothers and their attorney, Gloria Rodriguez, discuss the case.

Jussie Smollett's decision to continue to appeal his hate crime hoax conviction was not the "smartest" move for the disgraced actor, an expert familiar with the case tells Fox News Digital.

Smollett filed a petition on Feb. 5, requesting the Illinois high court intervene in his ongoing legal drama. The "Empire" actor's conviction for a staged hate crime was upheld in December.

A jury previously found Smollett guilty on five of the six charges of disorderly conduct after a nearly two-week trial in 2021. Smollett, who is Black and gay, reported to Chicago police that he was the victim of a racist and homophobic attack by two men wearing ski masks in January 2019.

"The smartest move would have been to do the time and get it behind him," branding expert Eric Schiffer told Fox News Digital. "These moments where you are revisiting the facts of a case, in which he severely damaged his trust with the public, further reinforces him as a personality the public can't trust."

JUSSIE SMOLLETT'S CONVICTION UPHELD BY ILLINOIS APPEALS COURT

Jussie Smollett is appealing his hate crime hoax conviction again. The actor is asking the Illinois Supreme Court to hear his case. (Richard Shotwell/Invision/AP  |  AP Photo/Cheryl Cook)

"Instead, had he done the time, he could have begun to rebuild himself and his story and focus on new things," Schiffer added. This could have included projects, community service or nonprofits – where the "narrative" isn't the "overhang of how he tried to pull a giant fraud on the public."

Smollett was sentenced to 150 days in jail following his conviction. The actor was also sentenced to 30 months felony probation, restitution to the city of Chicago in the amount of $120,106 and a fine of $25,000.

HOW JUSSIE SMOLLETT STAGED HIS HATE CRIME HOAX: ACCOMPLICES RETURN TO THE SCENE OF THE CRIME

Jussie Smollett is led out of the courtroom after being sentenced on March 10, 2022. (Brian Cassella-Pool/Getty Images)

The "Empire" actor wants the conviction overturned. "What should have been a straightforward case has been complicated by the intersection of politics and public outrage," Smollett’s attorneys wrote in the new filing.

They repeated an argument from previous appeals saying his 2021 trial violated his Fifth Amendment protections against double jeopardy, or being punished twice for the same crime. They said he already performed community service and forfeited a $10,000 bond as part of a 2019 deal with the Cook County state’s attorney’s office to drop the initial 16 counts of disorderly conduct.

LIKE WHAT YOU’RE READING? CLICK HERE FOR MORE ENTERTAINMENT NEWS

This booking photo provided by the Cook County Sheriff's Office shows Jussie Smollett. (Cook County Sheriff's Office via AP)

Eric Anderson, counsel at Early Sullivan Wright Gizer & McRae, told Fox News Digital: "If you have the resources to fight a conviction, then you should use those resources."

"One of the problems with our justice system is that the ability to challenge hinges on either the wealth or access to wealth of a defendant or the goodwill of those willing to do the work at reduced or no costs to the defendant," he added.

Smollett has a "50/50 chance" of having his conviction overturned, according to Anderson. If the Illinois Supreme Court were to take up Smollett's case – they'll likely focus in on one of Smollett's five arguments behind his appeal, the legal expert explained.

Jussie Smollett speaks to Judge James Linn after his sentence is read in court. (Brian Cassella/Chicago Tribune via AP, Pool)

Smollett's legal team is arguing that the state breached a "nolle prose agreement," or non-prosecution agreement, by indicting him again in the hate crime hoax. In the agreement, Smollett had been told he could perform community service, forfeit his bond, and the case would be dismissed – similar to a deferred prosecution. Instead, a grand jury restored the charges in 2020, and he was later convicted.

Anderson noted the Illinois Supreme Court could want to answer the questions surrounding this argument, such as: "Just how much value can one rely upon in a negotiated nolle pros with the State? How detailed must the agreement be?"

CLICK HERE TO SIGN UP FOR THE ENTERTAINMENT NEWSLETTER

Jussie Smollett has maintained his innocence throughout the trial, conviction and appeal. (Amy Sussman)

Smollett's ongoing legal case could "be seen as poison for casting," Anderson added, but having his conviction overturned could "be good not only for his life but for his career."

"He can do the time later as well as he can right now," Anderson said. "After, if his case is not overturned, his schedule will then be wide open."

Schiffer, chairman of Reputation Management Consultants, believes Smollett can "rebuild himself" but, "he needs time to heal" his reputation.

"When you're reminding the public constantly of what a giant con and fraud you were attempting to pull, that's not the best strategy to rebuild in Hollywood," he explained. 

"He needs memories to fade and headlines and stories associated to him are about him rebuilding his life, focusing on things that would help the community and projects that he may be in that are new and not further headlines that are tied to his terrible choices."

CLICK HERE TO GET THE FOX NEWS APP

The Associated Press contributed to this report.