After two brothers spent hours telling a jury how Jussie Smollett paid them to carry out a false racist and anti-gay attack on himself in downtown Chicago, the big question when the trial of the actor will resume on Monday will be whether or not he will tell his side of the story.
Lawyers rarely announce whether or not their clients will take a position before calling them to testify, and Smollett’s lawyers have not made their plans public.
The reasons Smollett might want to testify begin with the oddity of the case. During the trial which began last Monday, there emerged a story of a TV star who chose two brothers as his attackers, gave them a dialogue to recite and paid the rope he told them. to shape into a slip knot and loop around her neck.
Strange as it sounds, this is the only account that came to the jury of siblings, Abimbola and Olabinjo Osundairo. And some legal experts say the only chance Smollett has to beat the charges of lying to police is to tell jurors his version of what happened on January 29, 2019.
“Jurors might be asking, ‘Who is this guy thinking for, without getting up and telling his story,'” said Terry Ekl, a prominent Chicago-area defense lawyer who is not involved. in the case.
Ekl and other legal experts have said jurors aren’t supposed to read anything about an accused’s decision not to testify, but when they return to the deliberation room, they often do.
As to the importance of a defendant’s testimony, legal experts said there was only to look no further than the recent Kenosha, Wisconsin trial where Kyle Rittenhouse was acquitted of all charges. charges after he said he shot two men and injured another because he feared for his own life.
“They won the case by putting it on,” said Kathleen Zellner, defense attorney for the Chicago area. “The jury believed him.
In Smollett’s case, it may be important for him to testify because, as bizarre as the brothers’ testimony is, they are the only witnesses to the incident who testified. And, said Chicago-based defense attorney Joe Lopez, Smollett’s attorneys “haven’t been able to remove these brothers.”
They also failed to locate a white person whom a woman told police saw carrying a rope around the neighborhood earlier that night, leaving the brothers and Smollett as the only three people whose jury can conclude. ‘they know what happened.
“I think they just want to hear her story and if they don’t, the only one they have is the prosecution story,” said David Erickson, a former appeals judge for the State who teaches at the Chicago Kent College of Law.
Another reason Smollett might want to testify: he should be good at it.
“He’s an actor. He should testify,” Lopez said.
“He has the ability to communicate (and) he thinks he can take the witness stand and play a role,” Ekl said.
Erickson said that when he teaches legal advocacy he makes it clear from the start that jurors vote for the people they love. Right now, he said, he’s sure they like Special Prosecutor Dan Webb. “Dan Webb is everyone, he seems like a nice guy, a good neighbor next door.”
However, they do not know Smollett and have not heard his voice since he appeared for jury selection.
But testifying could pose all kinds of problems for Smollett, starting with his need to explain how the brothers knew they would meet him in the middle of an extremely cold night in an unfamiliar neighborhood on his way home from a sandwich shop. . Unless he told them he would be there.
Plus, if he’s found guilty, Smollett’s words could get him even more trouble.
“You cannot be penalized (by a judge) for not having testified, but if he speaks up and the judge thinks he has perjured himself, he can add time (jail or jail) “said Erickson.
Erickson and Ekl both believe Smollett will eventually testify, even though his lawyers beg him not to.
“I think you have a guy who is so arrogant and egotistical, he really thinks he can make people believe what he says to be true… (and) flout a jury to like him,” he said. declared Ekl. .