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Crime: EXPLAINER: Jussie Smollett's turn to testify. Will he?

Key moments since Jussie Smollett reported Chicago attack

  Key moments since Jussie Smollett reported Chicago attack CHICAGO (AP) — Jussie Smollett goes to trial Monday on charges that he lied to Chicago police when the former “Empire” actor and R&B singer reported being the victim of a racist and homophobic attack nearly three years ago. Some key moments in the story: Jan. 22, 2019 — Smollett receives a racist and homophobic threatening letter at the studio in Chicago where "Empire" is filmed. Police later say they believe Smollett sent the letter himself. Jan. 29, 2019— Jussie Smollett tells police he was attacked by two men in downtown Chicago at 2 a.m.

CHICAGO (AP) — After two brothers spent hours telling a jury how Jussie Smollett paid them to carry out a fake racist and anti-gay attack on himself in downtown Chicago, the big question when the actor's trial resumes Monday will be whether or not he will tell his side of the story.

FILE - Actor Jussie Smollett arrives Tuesday, Nov. 30, 2021, at the Leighton Criminal Courthouse for day two of his trial in Chicago.  After two brothers spent hours telling a jury how Smollett paid them to carry out a fake racist and anti-gay attack on himself, the big question when the trial resumes Monday, Dec. 6, is whether the actor will tell his side.   (AP Photo/Charles Rex Arbogast, File) © Provided by Associated Press FILE - Actor Jussie Smollett arrives Tuesday, Nov. 30, 2021, at the Leighton Criminal Courthouse for day two of his trial in Chicago. After two brothers spent hours telling a jury how Smollett paid them to carry out a fake racist and anti-gay attack on himself, the big question when the trial resumes Monday, Dec. 6, is whether the actor will tell his side. (AP Photo/Charles Rex Arbogast, File)

Attorneys rarely announce whether or not their clients will take the stand before they actually call them to testify, and Smollett's attorneys have not made their plans public.

Jussie Smollett's Trial Begins as Actor Faces Charges He Faked Racist Attack

  Jussie Smollett's Trial Begins as Actor Faces Charges He Faked Racist Attack Former "Empire" star Jussie Smollett has been accused of orchestrating an alleged racist and homophobic attack on himself in Chicago almost three years ago.The former Empire star, 39, alleged that he was attacked on the streets of downtown Chicago on January 29, 2019. However, brothers Abimbola and Olabinjo Osundairo have alleged that he paid them $3,500 to stage the attack.

The reasons why Smollett might want to testify begin with just how bizarre the case is. During the trial that started last Monday, what emerged was the story of a television star who cast two brothers as his attackers, gave them dialogue to recite, and paid for the rope he told them to fashion into a noose and loop around his neck.

As strange as that sounds, it is the only narrative that has come to the jury from the siblings, Abimbola and Olabinjo Osundairo. And some legal experts say the only chance Smollett has of beating charges that he lied to the police is by telling jurors his version of what happened on Jan. 29, 2019.

"The jurors might be thinking, ‘Who does this guy think he is, not getting up and telling his story,’" said Terry Ekl, a prominent Chicago-area defense attorney not involved in the case.

Jussie Smollett's trial starts today. This is how we got here

  Jussie Smollett's trial starts today. This is how we got here Jury selection starts Monday in the trial of former "Empire" star Jussie Smollett, who is accused of making false reports to authorities that he was the victim of a racist and homophobic attack in 2019. © Rob Kim/Getty Images NEW YORK, NEW YORK - NOVEMBER 19: Director Jussie Smollett attends the New York Screening of "B-Boy Blues" at AMC Magic Johnson Harlem on November 19, 2021 in New York City. (Photo by Rob Kim/Getty Images) Smollett, 39, was indicted on six counts last year by a Cook County, Illinois, grand jury, but the actor has insisted on his innocence, repeatedly denying he orchestrated the attack.

Ekl and other legal experts said jurors are not supposed to read anything into a defendant's decision not to testify but that when they return to the deliberation room they often do just that.

As to the importance of a defendant testifying, legal experts said one need look no further than the recent trial in Kenosha, Wisconsin, where Kyle Rittenhouse was acquitted of all charges after he testified that he fatally shot two men and wounded another because he feared for his own life.

“They won the case by putting him on,” said Kathleen Zellner, a Chicago area defense attorney. “The jury believed him.”

In Smollett's case, it may be important for him to testify because, as bizarre as the brothers' testimony was, they are the only witnesses to the incident who have testified. And, said Chicago-based defense attorney, Joe Lopez, Smollett's attorneys “haven't been able to impeach these brothers.”

Jussie Smollett Trial: Previously Dismissed Charges Could Help His Case—Attorney

  Jussie Smollett Trial: Previously Dismissed Charges Could Help His Case—Attorney Criminal defense lawyer Julie Rendelman speaks to Newsweek about how strong the case against Jussie Smollett is.The actor had claimed that he was the victim of a racist and homophobic attack on the streets of Chicago back in January 2019. Brothers Abimbola and Olabinjo Osundairo later alleged that Smollett had paid them $3,500 to stage the attack as part of a bid to be paid more money on his show, Empire.

Nor have they located a white person that a woman told police she saw carrying a rope in the area earlier that night, leaving the brothers and Smollett as the only three people that the jury can conclude know what happened.

“I think they just want to hear his story and if they don't, the only one they've got is the prosecutions' story,” said David Erickson, a former state appellate judge who teaches at Chicago Kent College of Law.

Another reason why Smollett might want to testify: He should be good at it.

“He's an actor. He should be testifying," Lopez said.

“He has the ability to communicate (and) he thinks he can take the witness stand and play a role,” said Ekl.

Erickson said that when he teaches trial advocacy, he makes it clear from the outset that jurors vote for people they like. Right now, he said, he's sure they like the special prosecutor, Dan Webb. “Dan Webb is every man, he seems like a nice guy, a good next-door neighbor. "

In contrast, they don't know Smollett, and have not heard his voice since he introduced himself during jury selection.

But testifying could pose all sorts of problems for Smollett, starting with his need to explain how the brothers knew they would run into him in the dead of a brutally cold night in an unfamiliar neighborhood as he returned from a sandwich shop. Unless he told them he would be there.

Also, if he's convicted, Smollett's words could land him in yet more trouble.

“You can't be penalized (by a judge) for not testifying but if he takes the stand and the judge believes he perjured himself, he can add (jail or prison) time,” said Erickson.

Both Erickson and Ekl think Smollett will end up testifying, even if his attorneys beg him not to.

"I think you've got a guy who is so arrogant and self-centered, he really thinks he can make people believe what he says is true ... (and) schmooze a jury to get them to like him," Ekl said.

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Check out the AP’s complete coverage of the Jussie Smollett case.

Jussie Smollett to be Sued for $130k by City of Chicago Over Hate Crime Hoax .
Actor Smollett was on Thursday found guilty on five out of six counts of disorderly conduct for lying about a racist attack—and he's now facing a bill.On Thursday, a jury found the former Empire star guilty on five out of six counts of disorderly conduct for lying about the 2019 incident, in which he had claimed two men doused him with bleach and tied a noose around his neck while shouting racial and homophobic slurs.

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