Jussie Smollett released from jail: Will he successfully appeal conviction? Legal experts weigh in

A panel of three appellate judges ruled 2-1 on Wednesday in favor of releasing the former 'Empire' star

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What's next for Jussie Smollett after his release from jail on Wednesday? Several legal experts gave their opinions in interviews with Fox News Digital.

Smollett was granted a release on bond from the Cook County Jail in Illinois pending the appeal of his conviction. A panel of three appellate judges came down with the ruling in a 2-1 decision granting the former "Empire" star’s release after posting a personal recognizance bond of $150,000. 

It is nearly the amount of the $120,106 restitution Smollett was ordered to repay after he was convicted of lying to Chicago police about being the victim of a hate crime in 2019.

As the appellate judges have released Smollett on his own recognizance, he will not fork over any of the amounts so long as he agrees to appear in court as required.

The legal experts who weighed in on the court's decision as news of Smollett’s release swiftly spread raised questions as to why the three-judge panel elected to spring the actor from jail, as well as what this could potentially mean for his conviction appeal.  

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'Great sign'?

According to one criminal defense attorney, while Smollett’s celebrity status hurt him in his trial and the subsequent sentencing handed down by Judge James Linn, the decision to free him pending his appeal was "a great sign" for the embattled singer and performer after he was recently sentenced to 150 days in jail and 30 months of felony probation in addition to the restitution.

Jussie Smollett is released from Cook County Jail on March 16.

Jussie Smollett is released from Cook County Jail on March 16. (FOX 32 Chicago)

Los Angeles-based defense attorney Lara Yeretsian – who is not involved in the case – told Fox News Digital minutes after the release order was granted Wednesday that she believes Smollett, 39, "has got some really good grounds for his release."

During Smollett’s sentencing hearing on March 10, his legal counsel argued he had been the victim of a double jeopardy conviction based on the Fifth Amendment Clause and doubled down on the idea in court that it was "unconstitutional to charge someone twice" for the same offense.

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At a Wednesday news conference held outside the Cook County Jail in Chicago, double jeopardy arguments from Smollett’s legal team were mentioned again and were based on Cook County state's attorney Kim Foxx originally dismissing the indictment against Smollett in exchange for him forfeiting his $10,000 bond. 

Following Foxx's dismissal of the initial charges, special prosecutor Dan Webb was appointed to the case, and he ultimately charged Smollett. However, the actor’s lawyers argued that jeopardy had already been attached, and he couldn't be prosecuted a second time. 

‘Intellectual discussion’

Now, Smollett's defense attorney Nenye Uche is seeking to file an appeal of the verdict.

"We are very happy with the ruling made by the Illinois District Appellate Court," Uche said in a statement to Fox News Digital.  "We are pleased that sensationalism and politics will be put aside and we can finally have an intellectual discussion about our laws with our esteemed appellate court. 

"Three years ago, Jussie and the State of Illinois reached a deferred prosecution agreement in which he paid a $10,000 fine and performed community service. As a result, the case was dismissed," the statement continued. "To be recharged and prosecuted for the exact same thing, a second time, is not just morally wrong, but certainly double jeopardy and thus unconstitutional – especially as it concerns an innocent man."

A jury convicted actor Jussie Smollett of five counts of disorderly conduct for staging a racist, anti-gay attack in Chicago and lying to police. 

A jury convicted actor Jussie Smollett of five counts of disorderly conduct for staging a racist, anti-gay attack in Chicago and lying to police.  (Associated Press graphic)

Yeretsian believes Smollett’s lawyers have a firm point and that the three-judge panel might have felt similarly as the justice system should take only the law and the Constitution into account.

"The one aspect that really, really sticks out for me as far as appeals go is the special prosecution – I mean, it's almost unheard of," she explained of the appointment of special prosecutor Webb. "Smollett had a deal. He took the deal. He met his part. He had a contract with the prosecution to do community service and he forfeited his $10,000 bond and in return, they gave him a diversionary deal and once he finished his community service and forfeited his bond, this case was dismissed – the same counts."

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Webb did not immediately respond to Fox News Digital’s request for comment.

‘Legal error'?

Furthermore, West Coast Trial Lawyers President Neama Rahmani – who is also an uninvolved spectator to the Smollett saga – relayed to Fox News Digital that for the three-panel committee to come back with a ruling releasing the actor from jail, "there has to be a clear legal error" allegedly on the part of Judge Linn or prosecutors that pointed to a reason for Smollett’s release.

"There are a lot of people unhappy at Kim Foxx," Rahmani explained of the confusion surrounding the "deal" from Foxx that Smollett agreed to but did not officially plead to in signing.

"[Smollett] didn't take a plea, that's why it's a weird issue," Rahmani pressed. "He didn't take a plea. [Foxx] said, 'Listen, forfeit your bond and if you agree to do some community service, I'm going to dismiss.' So that's why it's a weird legal issue."

Cook County State's Attorney Kim Foxx.

Cook County State's Attorney Kim Foxx. (Associated Press)

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Asked point-blank if he believes Smollett now has a decent case for getting his conviction overturned based on his team's Fifth Amendment argument, Rahmani agreed simply based on the decision from the appellate justices.

"Yes, it's a good case, and we know it's a good case because he's already got two out of three justices who are saying that he should be released on bond and his sentence should be stayed while this appeals process is being heard," Rahmani said. "So he's got a very good legal argument for getting his conviction overturned."

Actor Jussie Smollett, center, leaves the Cook County Jail on Wednesday, March 16, 2022.

Actor Jussie Smollett, center, leaves the Cook County Jail on Wednesday, March 16, 2022. (Associated Press)

Does ‘double jeopardy’ apply?

Meanwhile, on the side of prosecutors, Rahmani maintained that he understands the proverbial gray area the case straddles, and added that the prosecution was more than fair in raising the fact that Smollett hadn’t signed any plea agreement, thus double jeopardy shouldn’t apply.

"The trial judge said [Smollett] didn't plead, he wasn't punished, so the jeopardy never attached but what I think the appellate judges are going to say is that by making him forfeit his bond, that's considered punishment – jeopardy attaches and you can't [charge him again]," Rahmani said.

Rahmani pointed to Smollett’s forfeiture of his $10,000 bond as a litmus not only for punishment but acceptance of the Foxx agreement. 

"This one was very sort of nonstandard. Normally, the deals aren't in exchange for forfeiting your bond," he said. "So it's a very atypical case and I think that's why the trial judge [Linn] said, jeopardy didn't attach because [Smollett] never came in here and pled in my courtroom with a plea agreement and all the things that are normally involved with the dismissal."

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‘We are gratified’

Following the news conference on Wednesday, Tina Glandian of Geragos & Geragos, who is also representing Smollett, told Fox News Digital in a statement: "We are gratified that Jussie will be back with his family and loved ones and look forward to a dispassionate review and reversal of the serial injustices visited upon him."

The court’s decision marks the latest chapter in a strange story that began in January 2019 when Smollett reported to Chicago police that he was the victim of a racist and homophobic attack by two men wearing ski masks. The manhunt for the attackers soon turned into an investigation of Smollett himself and his arrest on charges that he’d orchestrated the attack and lied to police about it.

Authorities said Smollett paid two men he knew from work on the TV show "Empire" to stage the attack. Prosecutors said he told them what racist and homophobic slurs to shout, and to yell that Smollett was in "MAGA Country," a reference to the slogan of Donald Trump’s 2016 presidential campaign.

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A jury convicted Smollett in December on five felony counts of disorderly conduct — the charge filed when a person lies to police. He was acquitted on a sixth count. Judge Linn sentenced Smollett last week to 150 days in jail — with good behavior he could have been released in as little as 75 days.

Smollett maintained his innocence during the trial.

The Associated Press contributed to this report.