Chicago, IL – One of the attorneys for “Empire” star Jussie Smollett suggested that the actor may have been attacked by men in whiteface and complained that the police hadn’t bothered to investigate that potential aspect of the case.
Tina Glandian told NBC News that Smollett’s attackers may have painted their faces white underneath their ski masks, causing the actor to erroneously tell police that he had been attacked by two white men.
Ola and Abel Osundairo, who told police that Smollett paid them to stage the attack, are brothers of Nigerian descent with very dark skin.
“Just to be clear, he only saw one of the attackers. One of them he didn’t see. He saw one through a ski mask,” Glandian said. “Again, he could not see their body. Everything was covered, and he had a full ski mask on except the area around the eyes.”
The attorney continued to insist that either of the Osundairo brothers could have been mistaken for a white man.
“He did tell police... from what we saw, he thought it was pale skin or white or pale skin, was I think what he said. And that’s why he initially did have a hard time,” she explained.
Glandian said the Chicago Police Department dropped the ball in their investigation.
“There is, interestingly enough, a video,” she said. “I think the police did minimal investigation in this case. It took me all of five minutes to Google. You know I was looking up the brothers and one of the first videos that showed up actually was of the brothers in whiteface doing a Joker monologue with white makeup on him. So, it’s not implausible.”
But police said that Smollett was very clear in his description of his white attackers.
Smollett told police that one of his attackers wore a red Make America Great Again-like baseball cap and told him “This is MAGA country” when they were beating him on Jan. 29.
The actor told police the white supporters of President Donald Trump had put a noose around his neck and poured a bleach-like chemical on him.
Chicago Police Superintendent Eddie Johnson explained at a press conference the day of Smollett’s arrest for filing a false police report that that police considered the actor a victim up until the Osundairo brothers returned from Nigeria to Chicago and were taken into police custody
That’s when the investigation “spun in a totally different direction,” he said.
“We gave him the benefit of the doubt up until that 47th hour. But when we discovered the actual motive, quite frankly, it pissed everybody off,” Superintendent Johnson explained.
The Osundairo brothers told police that Smollett had paid them $3,500 by check to help stage the attack.
Police confirmed to the public on Feb. 21 that Smollett had become a suspect in his own attack, the same day surveillance video was released that showed the Osundairo brothers purchasing a red hat and black ski masks, allegedly at the direction of Smollett.
The men told police that Smollett told them what to buy and gave them the money to get the rope and other props needed for the staged attack.
Smollett was eventually indicted by a grand jury on 16 felony charges.
But despite an overwhelming amount of evidence that both the police superintendent and Mayor Rahm Emanuel said they continue to stand behind, the Cook County State’s Attorney’s Office dropped all the charges against the actor on Tuesday.
The disposition of the case has become a battleground that has created unlikely bedfellows, with police and the mayor on one side and the state’s attorney’s office appearing to be aligned with the defendant and his team on the other.
The Federal Bureau of Investigation (FBI) reportedly launched their own investigation on Wednesday into the circumstances behind Chicago prosecutors’ secret deal to drop the charges against Smollett, WLS reported.
President Donald Trump weighed in on the matter via Twitter on Thursday morning and said federal authorities were going to investigate what happened.
“FBI & DOJ to review the outrageous Jussie Smollett case in Chicago. It is an embarrassment to our Nation!” President Trump tweeted.
The Cook County State’s Attorney’s Office said the charges of lying to the police had been dropped in exchange for restitution in the form of giving up his $10,000 bail and performing 16 hours of community service for the Reverend Jessie Jackson’s charity.
But even as the prosecutor’s office claimed there was nothing unusual about deferred action in a case like Smollett’s, WLS reported that staff in the state’s attorney’s office was scrambling to find similar examples to use in their own defense.
“We are looking for examples of cases, felony preferable, where we, in exercising our discretion, have entered into verbal agreements with defense attorneys to dismiss charges against an offender if certain conditions were met, such as the payment of restitution, completion of community service, completion of class, etc., but the defendant was not placed in a formal diversion program,” read a memo that was circulated in the Cook County State’s Attorney’s Office on Wednesday, according to WLS.
“Please ask your [assistant state’s attorneys] if they have examples of these types of dispositions and we will work with them further to figure out on what case it was done,” the memo continued. “Nobody is in trouble, we are just looking for further examples of how we, as prosecutors, use our discretion in a way that restores the victim, but causes minimal harm to the defendant in the long term.”
The prosecutor who brought charges against Smollett said they weren’t dropped because the actor is innocent.
“I do not believe he is innocent,” First Assistant Cook County State’s Attorney Joseph Magats told WBBM.
Magats, who took over the case when Cook County State’s Attorney Kim Foxx had to recuse herself for attempting to help his family get the investigation transferred to the Federal Bureau of Investigation, said he was the one who made the decision to drop the 16 felony counts against Smollett.
“Based on all facts and circumstances of the case, and also keeping in mind resources and keeping in mind that the office’s number one priority is to combat violent crime and the drivers of violence, I decided to offer this disposition in the case,” he said.
Magats issued further statements later in the day to clarify his position on Smollett's innocence, or lack thereof, and explain his decision to dismiss the charges.
"Here's the thing -- we work to prioritize violent crime and the drivers of violent crime. Public safety is our number one priority. I don't see Jussie Smollett as a threat to public safety," he said, according to a tweet from the New York Times.
Despite Foxx’s earlier assertion that she had taken herself out of the mix, a spokesman for the state’s attorney’s office clarified on Wednesday that she had not done so formally.
Cook County State's Attorney Spokeswoman Kiera Ellis told the Chicago Patch in a written statement that Foxx "did not formally recuse herself or the [State's Attorney] Office based on any actual conflict of interest. As a result, she did not have to seek the appointment of a special prosecutor."
Ellis said that Foxx’s public announcement of her recusal “was a colloquial use of the term rather than in its legal sense," the Chicago Patch reported.
"Instead, in an abundance of caution, [Foxx] informally separated herself from the decision-making over the case and left it to her Assistants, as happens in 99.9% of all cases handled by the Office,” Ellis explained.
State law requires that "the court shall appoint a special prosecutor" after a state's attorney recuses herself on a case, according to the Chicago Patch.
Superintendent Johnson characterized the disposition of the case against Smollett as brokering “a deal to circumvent the judicial system” at a press conference with the mayor on Tuesday.
Emanuel repeatedly called the situation a “whitewash of justice” and said Smollett was getting special treatment because he is an actor.