Columns, Criminal law, Media

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. I think we should be careful with the term “Nullification”. It takes multiple forms and this case (Nullify by ignoring the facts) differs from three other types.

    A second kind is Nullification as the act of the jury directly rejecting an oppressive law; not ignoring the law to protect a favored individual, but attacking the law itself (eg the early publication case you cited and maybe an Irish jury saying a pair of stolen boots doesn’t deserve deportation to Australia) ;

    A third is Nullification directed at the all-to-common “Apply the law to someone we dislike but ignore the violation when it is done by someone we like”. This is usually a protest against “Discression”- laws being used to target an enemy. When I drive an old car I occasionally get pulled over for “not using my turn signal”. In my new Toyota it never happens. There are a surprising number of not-guilty or hung jury verdicts that seem to me to be about “Why is this case being tried?”, “Why are you compelling us to waste our time?” and “Why are you wasting the States money”?

    A fourth, and very common, kind is essentially Judicial Nullification by the Judge, either for good reasons (to correct an obviously correct application of the law which will lead to a great injustice) or not-so-good-reasons (a defendant who is guilty but gets a partial break because of the Judge’s identification with the criminal or crime).

    I’m not sure how we should handle the last three, although they all raise questions about fairness and power.

  2. So what exactly is the difference between this and the Bush Administration misrepresenting FISA Court search warrants? Then misrepresenting FISA “after-the-fact” warrants? Or faux-aluminum tubes? In the past 20 years it was not only false but intentionally false statements that they knew were false at the time – both are felony crimes. Felonies under FISA (Foreign Intelligence Surveillance Act) apply specifically to presidents that are disloyal to their oath of office. Ronald Reagan wanted all torturers indicted and convicted as required by U.S. federal law and legally binding treaties since the 1980’s.

    The Bush Administration also perpetrated some of these crimes about 6 months BEFORE 9/11 (when no wartime emergencies existed) and also used these powers against perceived political enemies. No executive privilege applies to fraud when no emergency existed and during peace time.

    To the average Joe this continues to breed cynicism and distrust in government institutions. Although still wrong, Smollett is no worse than the Bush DOJ attorneys.

  3. So Turley believes it to be so important to write about some out of work wanna-be, who is clearly a jerk and looking for publicity that he omits any and all things about January 6th. Daily, Trump and his sedition allies lose court after court decisions and there is crickets from Turley. Some of us would like to hear your opinions on the matter, but by your silence we can predict your answers.

    1. That’s because “January 6th Insurrection” has the same ring of truth to it as “Jussie Smollett attempted lynching.”

        1. Trumps Coup plot? Are u talking about when he told these people to go to the Capitol grounds and protest peacefully like the Patriots that they are. Is that what u mean? Peacefully does not mean storm the Congress it means protesting bringing peaceful ideas and sentiments. How many of these protesters not Patriots but plants like federal agents and capital police not in uniform to encourage violence? Show all the videos Nancy Pelosi the American people want to see all the videos ALL. Liz Chaney did u tell your constituents in Wyoming that u changed parties I think u owe them that don’t u?

    2. That’s because “January 6th Insurrection” has the same ring of truth to it as “Jussie Smollett attempted lynching.”

    3. Sedition? Care to cite a SINGLE individual charged with sedition? or insurrection? or terrorism? or treason? or anything substantive beyond trespassing or disturbing the peace? Your hatred blinds you. Seek help.

  4. How could anyone with a degree of critical thinking and objectivity not vote for a guilty verdict?
    Even prior to the trial, which definitely laid out the hoax, it was pretty obvious.

    The prosecution had a strong case, the defense had no case at all.

    1. This is exactly the question. It needs to be stated aloud until it finally permeates into (or utterly delegitimizes) the main news media. I have to go to websites that are widely considered “hate sites” in order to learn about such things, because the main media are determined to keep George Floyd and Emmett Till and other black men in our minds so much that we never even think to ask about who does the overwhelming bulk of interracial violence.

  7. It’s not my body when I ride a motorcycle without a helmet, ride in a car without a seat belt, smoke cigarettes and marijuana, and ingest drugs and alcohol, but suddenly it is my body when I want to get an abortion.

  8. Off topic. New Zealand is outlawing smoking and sales if tobacco. America! Wake up! You lost 485,000 people to death by smoking.

  9. Turley says:

    “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.”

    Is there the least bit of doubt that a jury of Trumpists would NEVER convict Trump of anything.

    https://youtu.be/qC16c98hDPc

    Turley further observes:

    “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.”

    If that is true for Smollett, it is DOUBLY true for Trump.

      1. Fishwings,

        Thanks for the kudos. Notice when I make a good point, the lying Trumpists pretend to ignore it. I do give Turley credit for his perspicacity though I fault him for his glaring hypocrisy. Trumpists, however, are too mean-spirited to give us any credit for doing so.

    3. Yes. Astute observation. JS and DJT both have sociopathic self-righteousness, and see the world with themself as the savior, with those ends justifying the means. That zealotry leads to permission for lawlessness.

      1. Pbinca,

        I’m an atheist; I don’t believe in saviors. Like Turley, I believe in law and order which is why I want Trump to be held accountable.

  10. OT: Largest US city grants non-citizens voting rights — RT

    The New York City Council has approved legislation to give city residents who are not US citizens the right to vote in local elections – a move which could permanently alter New York politics.

    The controversial bill passed New York City’s overwhelmingly Democrat council by 33-14 on Thursday, meaning it will now be sent to New York City Mayor Bill de Blasio, who has expressed opposition to the proposed changes but is not expected to veto them.

    https://www.rt.com/usa/542750-new-york-noncitizens-vote/

    1. It is without equivocation that the phrase in the NY Constitution “Every citizen shall be entitled to vote…” was intended to identify those who, alone, were qualified to vote. If it were not exclusive it would be meaningless, i.e., imposing qualifications, age, upon citizens to vote but not necessary anyone else. Citizens could be required to be at least 18, but no restriction would be constitutionally required of non-citizens. The law is not meant to be absurd.

  13. Usually, whenever an atrocity is committed, an inter-faith gathering is held to help understand why it happened. Why was there no such gathering after the atrocity that was Santa, Inc.?

  14. In CITY JOURNAL brilliant Heather Mac Donald writes about something I mentioned a couple days ago.

    A white kid kills [a comparatively rare event] and it is a killing slobbered over by the media.

    The hourly slaughter of blacks by other blacks in chocolate neighborhoods is just their culture and not worth reporting even though the death toll is mountainous compared to that of the screwball white kid.

    Conclusion: BLACK LIVES DON’T MATTER in our media and government.

    2. Mac Donald is a national treasure. But I also recommend someone named Gividen who writes once a month on the Unz website and reports all the interracial murders he’s found. They are usually almost 100% black on white.

    3. Young — MacDomald also bravely notes that more cops are killed each year by black criminals than blacks are killed by cops. Given the relative numbers in each population, that is an extraordinary “disproportionate” execution of cops by black criminals.

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