Thread by @djbyrnes1

Smollett's sentencing has begun in Chicago. Defense attorneys are making arguments for why they believe Smollett should be granted a new trial. First and foremost, they claim Presiding Cook County Judge James Linn lacks jurisdiction over the case, and always has. @courthousenews

https://twitter.com/djbyrnes1/status/1501948553853169664

They claim Cook County Judge Michael Toomin overstepped his authority in appointing a special prosecutor to investigate Smollett's case in August 2019, seeing as Cook County State's Attorney Kim Foxx had already dropped the county's charges against Smollett that March.

"It was a violation of Mr. Smollett's rights to re-prosecute him" for effectively the same charges he faced (and had dismissed) in early 2019, defense argues, claiming it was a due process violation and a form of Double Jeopardy - facing two punishments for the same crime.

Defense also claims that Smollett was the victim of a negative press campaign that affected the course of the trial - they lay particular blame at the feet of former Chicago Police Superintendent Eddie Johnson, who gave press conferences disparaging Smollett before trial began.

Defense blames Judge Linn for allowing an "overwhelming presumption of guilt" to pervade the trial, for example by not asking jurors all the questions defense wished to present them.

Linn shoots back that some of the questions were unreasonable, allegedly including such questions as "what animal would you be?" and "Batman or Superman - which would you rather be?"

Defense also criticizes the jury's lack of racial and sexual orientation diversity during the trial - mostly white and straight people, charged with judging an openly gay, Black man. "Anyone looking at this jury could tell it was not a jury of Mr. Smollett's peers in Chicago."

Defense now accuses prosecution of using Smollett's personal silence following his 2019 arrest - his Fifth Amendment right - to improperly manufacture a presumption of guilt against him during trial.

Defense also claims that the Osundairo brothers - who admitted to carrying out the alleged hoax hate crime - may have engaged in quid pro quo with Chicago police. I.e., they got to avoid serious prosecution in exchange for giving testimony at trial that supported the cops' story.

They ask why the Osundairo brothers haven't been more seriously investigated - to which Judge Linn asks for what, specifically, the brothers should have been investigated. FWIW, the brothers do still face pending federal civil litigation.

Prosecution up now, responding to the defense's case for a new trial. Prosecuting law firm Winston & Strawn opens by pointing out that except for procedural expenses, they took this case pro bono to act as the county's special prosecutors.

Prosecution claims that the motion for a new trial is the latest in a long line of Smollett trying to blame everyone but himself for this ongoing legal drama. "He's blamed the media... he's blamed the Illinois Supreme Court... He's blamed Covid-19... he's blamed the jury itself."

Prosecution dismisses out of hand the defense's claims that they improperly shifted the burden of proof for convicting Smollett. "No one can say with a straight face that the [Office of the Special Prosecutor] did not meet its burden."

Prosecution also claims that Smollett "weaponized" his racial identity and sexual orientation over the course of the trial, and accuses the defense of resorting to ideological stances instead of grappling with the material record of evidence.

Prosecution also accuses the defense of "gamesmanship," claiming Smollett's attorneys attempted to turn the jury against the prosecutors themselves during the course of the trial.

Defense is back, clarifying the 4 important questions they wanted Linn to ask the jury but which they claim never got brought up:

1. Are you or someone close to you a member of the mainstream media?

2. How do you feel about actors?

3. Does someone's sexual orientation affect your perception of them?

4. Would you give more weight to the testimony of a police officer vs a regular citizen?

Defense has wrapped up; Linn speaking shortly on the issues raised by the defense: He rejects entirely the defense's Double Jeopardy / due process violation claim that Smollett's second grand jury investigation and indictment shouldn't have gone forward.

"Under the totality of circumstances... a second look was necessary," Linn said, agreeing with Judge Toomin and other judges' decision to revive the case following Kim Foxx dropping the initial 2019 charges.

Linn also dismisses the defense's claim that the Osundairo should have faced criminal charges - argues, effectively, that the issue at stake was Smollett's alleged misconduct, not the Osundairo brothers'.

Judge Linn says the defense's motion for a new trial for Jussie Smollett "is respectfully denied" after dismissing their concerns about the initial trial's validity. The court is taking a ten minute break; the sentencing hearing proper will begin after that. @CourthouseNews