Jussie Smollett’s Final Act: How a Hate Crime Hoax became a Pitch for Jury Nullification

Below is my column in The Hill on the Smollett trial and his strategy of jury nullification. The jury is now out but we will learn soon if the nullification arguments worked with all or some of the jurors. The question is whether jurors will show greater circumspection and responsibility than some political or media figures.

Here is the column:

In his testimony before a Chicago jury this week, actor Jussie Smollett talked about how he has had to carefully maintain his image as “a black Cary Grant.” The “Empire” star, however, seemed more like a modern version of Humphrey Bogart as Captain Queeg in “The Caine Mutiny,” a delusional witness lashing out at every other witness as “scoffing at me, spreading wild rumors.”

Many have marveled at the audacity of Smollett, who literally is asking jurors to discard not just every piece of material evidence, videotape and eyewitness testimony but to defy any semblance of logic in accepting his account of a racist attack by Trump supporters. That’s because he is not really trying to convince anyone he didn’t stage the attack with the help of Nigerian brothers Abimbola and Olabingo Osundairo. He is trying to get the jury to vote for him despite his guilt. It is called jury nullification, and this may be the most raw example of the practice in decades. Even if he can get a single holdout juror, he has a hung jury.

After all, Smollett followed a similar strategy successfully in the media for months. He knew that “facts” are whatever people want them to be. Some of us expressed skepticism over Smollett’s initial account: two Trump supporters coming upon him around 2 a.m. in Chicago on a freezing night in January 2019, and then allegedly beating him, putting a noose around his neck, pouring a chemical on him and declaring — perhaps for the first time in history — that Chicago is “MAGA country.” Making this even more bizarre was that the spontaneous attack occurred shortly after Smollett was the target of a racist letter threatening to lynch him — a letter that prosecutors believe he wrote.

None of that mattered, though, because Smollett knew his audience. Vice President Kamala Harris, then a U.S. senator, denounced what happened as an “attempted modern-day lynching.” House Speaker Nancy Pelosi (D-Calif.) said it was a “homophobic attack and an affront to our humanity.” In a fawning interview, ABC’s Robin Roberts described Smollett as “bruised but not broken” and breathlessly concluded the segment with “Beautiful, thank you, Jussie.”

Even when evidence mounted that this was a hoax, some media figures lashed out at Smollett’s doubters. ABC’s “The Talk” host Sara Gilbert was irate: “I find so personally offensive that a gay Black man is targeted and then suddenly he becomes the victim of people’s disbelief.”

Smollett’s attack was simply one of those “facts too good to check.” It made more sense to assume there are roaming bands of MAGA-hatted Trump supporters attacking Black people on Chicago’s streets.

In a courtroom, such willful blindness is supposed to yield to objective evidence. However, that is where jury nullification comes in. Georgetown law professor and MSNBC legal analyst Paul Butler has been a long-standing advocate of Black jurors engaging in jury nullification in some cases involving Black defendants. Butler wrote in the Washington Post in 2016: “Confronting the racial crisis in criminal justice, jury nullification gives jurors a special power to send the message that black lives matter.”

Jury nullification is not an act of willful blindness. Rather, it is an act of willful disregard of the evidence. It occurs when jurors acquit regardless of the evidence of guilt. It is not that they don’t see or understand the evidence; they simply choose the individual over the evidence.

Lawyers usually cannot expressly ask jurors to disregard the evidence of a case in contradiction to the judge’s instructions. But they can make the case for nullification in not-so-subtle ways. In Smollett’s case, the defendant talked about his mistrust of the police and openly accused the prosecutor of misrepresenting facts to the jury. In front of the jury, he declared: “I’m a Black man in America and I do not trust police.”

Smollett was curt on cross examination, insisting that the two Nigerian brothers (one of whom he said was once his lover), the Chicago police, the prosecutors and others all sought to frame him. Smollett even chastised prosecutor Dan Webb for reading from Smollett’s Instagram messages, which included the N-word; Smollett told Webb to spell or abbreviate the word so as not to offend “every African American in this room.”

There have been historical uses of jury nullification to resist government abuse, including racist prosecutions. One of the first such instances was the acquittal in 1735 of publisher John Peter Zenger, who printed seditious libels against abusive colonial governor William Cosby.

However, jury nullification can have a darker side, when jurors refuse to convict people because they agree with a crime, including possible hate crimes. That was the argument once made implicitly to some white Southern jurors in the early to mid-20th century to disregard crimes committed against African Americans, even murder.

The Smollett defense is a classic plea for nullification, which is why it seems so bizarre to most people weighing the evidence. The trial becomes a struggle over perceptions rather than proof. Even Smollett’s lawyers claimed to be victims in the courtroom. Defense attorney Tamara Walker demanded a mistrial in a sidebar conversation with attorneys from both sides and Cook County Judge James Linn. Walker reportedly broke into tears after accusing the judge of lunging at her in the courtroom and making faces from the bench.

Jurors can develop a strange sense of improvised justice in nullification verdicts. In Ireland, there was a famous verdict in the case of an Englishman who accused an Irishman of stealing a pair of boots. The guilt of the defendant was glaring, but the Irish jury ruled against the Englishman — and added one line to the jury form: “We do believe O’Brien should give the Englishman back his boots.”

Smollett is seeking the same conscious act of nullification from this Chicago jury. There is, however, more at stake than a pair of boots. Smollett is the very definition of a race-baiter seeking to use our racial divisions for his personal aggrandizement and advancement. If successful, he would reduce the court to the same narrative-driven reality of our politics and entertainment arenas.

In that sense, Smollett is still playing to his audience. He knows reality is not what is true but what an audience wants to be true.

In politics, Vice President Harris, Speaker Pelosi and others proved that with their protestations over his “attempted lynching.” In the media, not only his story but questioning of his story were cited as evidence of a viciously racist society. Now, in his latest performance, Smollett hopes to convince jurors that he may not be innocent, but he should not be found guilty. The question is whether jurors, like some journalists, will see the same “beauty” in Jussie Smollett’s tall tale.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

66 thoughts on “Jussie Smollett’s Final Act: How a Hate Crime Hoax became a Pitch for Jury Nullification”

  1. While Chicago is engulfed in flames, violent crime and racist black gay ex- actors, Florida Governor shows Americans what leader entails. No wonder the Dems and MSM (same difference) loathe DeSantis.

    https://www.miamiherald.com/news/politics-government/state-politics/article256453696.html

    DeSantis unveils Florida state budget with bonuses for teachers and police

    Flush with booming tax revenues and billions in federal cash, Gov. Ron DeSantis on Thursday unveiled a proposed $99.7 billion budget for the state’s next fiscal year that includes $1,000 bonuses for teachers and police and millions to combat illegal immigration and election fraud. Calling it the “Freedom First Budget” to echo DeSantis’ re-election slogan, his proposed budget includes nearly $1 billion for the environment and no tuition increases for state colleges and universities.

    “Florida is clicking in on all cylinders when it comes to the economy,” DeSantis said during a morning news conference in Tallahassee. “This is a really strong picture of a state that’s performing very, very well.”

  2. This was no hoax. Jussy committed a hate crime – it was a cynical attempt to stoke hatred and encourage violence against White people.

    1. Thanks for the link. I am reposting embedded. Dave Chappelle is a master storyteller, and his commentary on Smollett aged extremely well

      1. Dave Chapelle is the Lenny Bruce of comedy today. He not only makes your side hurt with laughter but is able to bring truth through his comedy. Hopefully more comedians will begin to emerge from hiding and F political correctness.

  3. Well, if the jurors are bigots brainwashed by the media to hate Trump and all his voters, then perhaps this strategy will work. We’ve certainly seen plenty of irrational hatred towards conservatives and Republicans over the years. Facts have nothing to do with it.

    This is the only play open to him, since he passed on a plea bargain.

    1. Karen says:

      “We’ve certainly seen plenty of irrational hatred towards conservatives and Republicans over the years.”

      True, but then again you Trumpists have your own chilling brand of hatred:

      “Lock her up” chants

      “Hang Mike Pence” cries

      “Jews will not replace us” marches

  4. Newsflash Smollet found guilty on 5 of 6 counts.
    So they say he could get up to 15yrs (5x3yrs max) but that’s unlikely.

    The sad thing is that he could have easily wrote the 130K check, saying it wasn’t an admission of guilt, but to put this behind him and to move on.
    Yet… he didn’t.
    He doubled down playing the race/gay cards.

    Having lived about 1/2mile due west of where he said the attack took place… I can tell you that it was faked. Everyone who lived in the area knew this.
    That cold … no one goes out unless they have to. Even CPD knew it was a hoax, but had to investigate it anyways.

    Hope he gets hit w 500K fine to cover police and now legal fees for the city.

    The sad thing… BLM and other still backed him. They don’t care if he faked it or not.
    That’s sad and it shows that BLM doesn’t care about the black people.
    In Chicago, the most dangerous thing for a black male is another black male.

    -G

    1. “Newsflash Smollet found guilty on 5 of 6 counts”

      Still waiting for the apologies from Biden, Harris, Roberts, Pelosi, CNN, et al.

      Which will come first — those apologies or hell freezing over?

  5. The Media and Leftist Radical Politicians along with the brain dead Woke folks might have been a great audience….but Twelve Jurors did not fall to the Clown’s effort to prosper from his criminal effort to inflame racial strife by his bogus allegations of hate crimes by imaginary Trump supporters. Guilty on five of six Felony Counts.

    Now…shall the Judge do the right thing and sentence the Convicted Felon to some time in prison where he can pursue some romantic liaisons while contemplating his Sins?

    1. @John.
      Looks like you got that wrong.
      Jury didn’t fall for it.

      They know Chicago winters and know when they are getting a snow job from a flake.

      Chicago isn’t racist. They don’t take kindly to hoaxes.

      -G

  6. As a juror, I would be hard pressed to believe testimony or evidence from FBI agents. To me that,e not jury nullification. It is the jury judging the evidence. With the stunning lack of whistle blower complaints, the rot of the FBI goes all the way down.

    1. @Iowan…

      What FBI?
      This was CPD.

      Anyone who lived in the area… knew it was BS from the start.
      I used to live 1/2 mile due west. Lived in River North for 20yrs.

      His story never lined up.
      You’d know this when you had to walk doggies when its -20 plus wind chill.
      The puppy didn’t like wearing boots but on those days… he did, and still only wanted to spend less than 10min outside.

      Also you can look at crime stats. Crime goes down when it gets that cold. Nobody goes out unless they have to…

      -G

      1. What FBI?
        This was CPD.

        My response is to the notion that if you attempt to impeach the cops, somehow that is jury nullification. The reason we have juries is to challenge the official “narrative” pushed by the State.

        From Turley
        “Jury nullification is not an act of willful blindness. Rather, it is an act of willful disregard of the evidence. It occurs when jurors acquit regardless of the evidence of guilt.”

        My response is to the notion that if the “Government” presents something, we cannot discount such “evidence”, That to do so, is jury nullification. But do you know who can discount evidence? The goverment. When the government does it, is called proprietorial discretion. That means the Government can igonore both the law, and the facts and decide to “nullify” a crime that was committed.

        Why Turley is so wound up about Nullification….when the People do it, but not the Government, is what I am questioning.

        Turley has abandoned his Libertarian leanings and shifted to the infallibility of the Government.

  7. this is chicago. they have a hold out juror who will not find him guilty. it’s obvious as this should have been an easy one. he’s a liar and full of BS and doesn’t care the harm and expense he caused. he’s your typical self absorbed actor…too stupid for further words.

    1. Did it also reject attorney/client privilege? How ’bout doctor/patient privilege?

      The D.C. Court of Appeals must be impeached and convicted, as must the largest part of the corrupt, anti-constitutional judicial branch, and certainly the Justices of the Supreme Court who directly violate the oath they themselves swore to – to support the Constitution.

    1. The Democrats are going off the rails. Deliberately.

      Perhaps inculcating a belief the Republicans are our saviors is the point.

  8. I was on a jury about 20 years ago where jurors wouldn’t convict because of their distrust of the police. One wouldn’t convict for any reason saying the Lord will judge them or if the family can forgive them, I can too. Needless to say, we were a hung jury. The foreman talked to the prosecutor afterward and found out the judge was considering a mistrial because another juror was sleeping through most of the testimony. I don’t know if the defendant was retried or released.

  9. Wait. Some?

    In any case, the remainder does not refuse and gladly accepts the undeserved sympathy, “benefits,” and “entitlements” generated.

    What kind of gullible idiot listens to these dependent parasites and provides “reparations” of prodigious amounts of national blood and treasure?

    A “Ship of Fools” indeed.

    1. You don’t suppose Vladimir Putin and Xi Jinping would entertain the self-serving idiocy of these legions of parasites, do you?

      Doesn’t Xi throw these types, Uyghurs, into concentration camps?

  10. “Smollett’s attack was simply one of those ‘facts too good to check.’ It made more sense to assume there are roaming bands of MAGA-hatted Trump supporters attacking Black people on Chicago’s streets.”

    You can always tell these hoaxes by how the explicit declaration of a political motive is made in an aside like a movie villain, and when it is made it is made with a ridiculous Snidely Whiplash mustache twirl, while the content of the declaration is a cartoonish caricature of one’s political adversaries.

    Like if I did one, I would have my attacker declare “this beating is a form of CRT, which is not only taught in law schools. I will make your kids into woke transsexual communists with CRT who hate Jesus and the flag and the military, and there is nothing you can do about it! hahaha!”

  11. He’s an actor. They think they can live above any law with their acting skills, or a warped view of such skills. Just wait until the Baldwin trial.

  12. What is the racial composition of the jury?

    OJ Simpson’s trial proved that some blacks care more about racial solidarity than they do about justice.

    Looking forward to the Lefty posts, though it would take imagination to bring Trump and Fox into the discussion.

Leave a Reply to debinrye Cancel reply