Jussie Smollett’s legal team began its defense of the former “Empire” actor late Thursday on charges alleging he orchestrated and reported a phony hate crime attack on himself to boost his career.
The defense began after the prosecution team, led by veteran attorney Dan Webb, rested after the testimony of its two key witnesses — brothers who told the jury Smollett directed them to participate in a bogus attack.
After Judge James Linn denied a routine defense motion for a directed finding of not guilty, the defense called as its first witness Brandon Moore, the actor’s music manager, who was on the phone with Smollett when the attack occurred.
Moore said he overheard someone on Jussie’s end of the conversation yell anti-gay epithets and “MAGA country.”
“I proceeded to hear the phone drop and stuff. … It started to sound kind of intense,” he said. “Jussie got on the phone and said ‘I just got jumped.’ … He sounded panicked. Sounded out of breath.”
The defense also called Dr. Robert Turelli, an emergency medicine physician at Northwestern Memorial Hospital, where Smollett went to get checked out after the beating. Turelli testified the injuries — including redness to the neck and scratches on his cheeks — were real, and that Smollett underwent X-rays and a CT scan.
The brothers, Abimbola and Olabinjo Osundario, testified earlier that Smollett wanted them to make the beating look real, but to pull their punches so he would not be seriously injured.
On cross-examination, Turelli testified that Smollett got Tylenol for pain but declined anything stronger. He also said none of the tests at the hospital showed Smollett had any additional injuries.
Earlier Thursday, Olabinjo Osundairo took the witness stand and told jurors that he never was able to put a rope around the actor’s neck during the phony attack.
Olabinjo, a former stand-in on “Empire,” testified that on the night of the attack he was initially distracted by a nearby car, but sprang into action when he saw his younger brother, Abimbola, wrestling with Smollett on the ground.
He said he pulled one of the strings out of the package of rope they’d purchased at a hardware store and “made it look like a noose.”
“That’s when I ran with the rope, put it around his face, and (brought) out the bleach and put it on his sweater,” he testified.
Jurors have previously viewed stills from surveillance video after the attack, which shows Smollett walking up the stairs to his apartment building with the rope looped around his neck.
The insinuation by prosecutors was obvious: Smollett pulled the rope around his neck himself after the brothers ran off.
During cross-examination Thursday afternoon, Smollett attorney Tamara Walker began by pointing out a discrepancy between Olabinjo’s testimony about the decision to use bleach and what he’d told a grand jury in 2019.
At the grand jury, Olabinjo testified that he switched the plan from gasoline to bleach so that he wouldn’t be captured on surveillance cameras pouring gas into a container. In his testimony at the trial Thursday, he said he wanted to swap those out for safety reasons.
Walker also confronted Olabinjo with his grand jury testimony that he believed a $3,500 check that Smollett gave them the day before the attack was for a meal and a training plan they’d developed for the actor, not payment for carrying out the hoax.
The defense has previously tried to paint Olabinjo as a homophobe. In her questioning, Walker asked Olabinjo about a tweet in which he asked someone “why you following Frank Ocean, you know that (epithet) gay, right?”
Ola says he didn’t consider the tweet problematic — just a joke between friends. He also said he didn’t know whether or not Ocean, the popular singer and songwriter, is gay.
As Walker pressed Olabinjo about whether his texts were homophobic, Linn broke in and told her to move along – saying she was getting into matters that were “collateral.”
That led to a brief but chaotic interlude. Walker asked for a sidebar; shortly afterward, with the jury out of the room, she asked the judge to grant a mistrial, since he called a central plank of the defense case “collateral.”
In addition, Walker said, Linn had “lunged” at her during a sidebar, which Linn, apparently furious, denied outright. He was merely reacting in shock that the defense would have requested a mistrial, he said.
Defense attorney Heather Widell also said for the record that Linn was making nasty faces when he sustained prosecutors’ objections: “I noticed snarls multiple times,” she said.
Linn repeatedly denied making faces or lunging at anyone, and vigorously denied the motion for mistrial.
After a brief recess to cool off, jurors returned to the box, and Walker continued questioning Olabinjo about his texts.
He claimed not to know that some of the terms he used were derogatory, and said he had never used them to refer to a gay person.
Earlier in his direct examination, Olabinjo described for the jury how he said Smollett had recruited him and his brother for the phony attack. He said he was out getting mail at his apartment when his brother and Smollett pulled up in Smollett’s Mercedes on the afternoon of Jan. 25, 2019.
The actor pulled him aside and asked, “Can I trust you?”
Of course you can, Olabinjo said he responded.
Olabinjo’s testimony about Smollet’s plan mirrored that of his brother, whose testimony ended earlier Thursday. He told jurors that Smollett “said he would want us to yell out racial and homophobic slurs at him” during the attack, which the actor believed would be captured on a police surveillance camera.
“He wanted us to say, ‘Aren’t you that “Empire” (homophobic slur) (racial slur)?’ and ‘This is MAGA country,’” he said.
On the way to a “dry run” of the fake attack on Jan. 27, Olabinjo said, Smollett got more specific about their roles: “For me, he wanted me to put the noose around his neck and pour bleach on him, while my brother hit him and put the bruise on his face.”
Smollett asked Abimbola to do the hitting because “He didn’t think that I would be able to hold my punches back,” said Olabinjo, whose ripped physique was shown to the jury through a shirtless photo of him on the “Empire” set.
The cross-examination of Abimbola Osundairo got off to a dramatic start Thursday morning with the defense suggesting he was secretly dating Smollett — or at least used the “sexual tension” between him and the actor to advance his own career.
From the stand, Osundairo strongly denied that their relationship was romantic, and said he did not believe Smollett had any kind of crush on him.
Osundairo testified earlier this week that Smollett instructed him and his brother, Olabinjo, to fake a hate crime attack on him in January 2019. The case spiraled into international controversy and confusion when Smollett was charged with falsely reporting the attack to police.
Osundairo testified with a straight face throughout, showing little emotion as the defense peppered him with questions. Didn’t he get a new trainer right after the incident? Has he been shopping around book deals? Didn’t he say that he wouldn’t testify if Smollett gave him $1 million? No, no, and no, Osundairo said.
Only once did Osundairo crack a smile: When defense attorney Shay Allen asked him whether, while walking around in the bitter cold at 1:30 a.m., he’d thought about just scrapping the plan and going home.
“I did, yeah,” he said.
But you really wanted to carry out this attack on Jussie, Allen said.
“Fake attack,” Osundairo said.
After the allegedly phony attack, Osundairo and his brother flew to Nigeria. While they were there, they searched online to see if anything had made the news. He was curious, he testified.
“About what?” Allen asked. “You were there, right?”
“Media attention,” Osundairo answered. “Jussie wanted it. He got what he wanted.”
In opening statements Monday, Smollett’s defense painted the Osundairos as criminals and liars who may have attacked Smollett out of homophobic tendencies. And cross-examination by Allen hit many of those points. He tried to question Osundairo, who is of Nigerian descent, about homophobia in Nigerian culture, to prosecutors’ repeated objections.
And in a made-for-TV moment, Allen asked Abimbola Osundairo: “When did you and Jussie start dating?”
“What?” Osundairo said. “We were never dating.”
The two men had sometimes gone to a bathhouse in Boystown together, Osundairo testified on direct examination Wednesday, but said he was unsure whether it was a gay bathhouse.
“Were you using the sexual tension between you to progress your acting career?” Allen asked Thursday.
“I didn’t know there was sexual tension,” Osundairo replied.
Smollett faces six felony counts of giving a false report to police. The actor, who is Black and gay, told officers he was attacked by two people who yelled racist and homophobic slurs, poured bleach on him, and tied a rope around his neck like a noose. The Osundairos, however, told police that Smollett recruited them to stage the attack, turning Smollett from victim to suspect.
Smollett’s lead attorney Nenye Uche has been barred from questioning either brother. In one of the case’s many odd wrinkles, after Uche signed on to the case earlier this year, the Osundairos claimed they had spoken with him about possibly representing them in the early days of the Smollett matter.
©2021 Chicago Tribune. Visit chicagotribune.com. Distributed by Tribune Content Agency, LLC.
This content is published through a licensing agreement with Acquire Media using its NewsEdge technology.