CHICAGO — Chicago police investigating the Jussie Smollett case apparently inadvertently taped 37 seconds of a private conversation between a key witness and his lawyer last year — a tape that has since made it into the hands of Smollett’s defense team, which says it helps prove the actor’s innocence.
The video of conversation between Olabinjo Osundairo and his attorney, Gloria Schmidt Rodriguez, was given to special prosecutors, who unwittingly turned it over to defense attorneys as part of a routine exchange of potential evidence.
When they realized they had done so, prosecutors asked the defense attorneys to confirm that they would not view it or use it, given that conversations between lawyers and their clients are confidential, attorney Sean Wieber said in court Friday.
But Smollett’s attorneys believe the tape shows what they have long argued: that Osundairo and his brother, who are the suspects-turned-witnesses at the heart of the case, were coached on a phony story to frame Smollett as a way to escape being charged themselves.
“We believe it’s evidence of them conspiring to come up with a story,” defense attorney Tina Glandian said in court Friday. “It is a significant statement that we would like to introduce into evidence.”
Judge James Linn, who is presiding over the case, hinted strongly that the tape would not ever be made public, saying “this is clear cut attorney-client privilege.”
“Somebody forgot to turn off the tape at the police station,” Linn said. “The lawyers are trying to use this now, and I’m not sure it will be available.”
But before rendering a formal decision, Linn requested to see the video in his chambers to determine whether the defense could use it.
The revelation came at a routine pretrial hearing in the former “Empire” actor’s second criminal case, which was charged in February by a special prosecutor after the initial case was abruptly dropped.
Olabinjo Osundairo and his brother, Abimbola, are key witnesses in the Smollett case. Their statement to police turned the onetime “Empire” actor from victim to suspect, launching a high-profile case that has seen roller-coaster twists in the past 18 months.
Schmidt Rodriguez could not immediately be reached for comment on Friday’s development.
A special Cook County grand jury indicted Smollett in February on six counts of disorderly conduct alleging he orchestrated a racist and homophobic attack on himself in downtown Chicago in January 2019.
The allegations were similar to charges brought by State’s Attorney Kim Foxx’s office last year. Foxx had recused herself from overseeing the prosecution, revealing she’d had contact with a member of Smollett’s family early in the investigation at the request of Tina Tchen, Michelle Obama’s former chief of staff.
But in appointing attorney Webb as special prosecutor last year, Cook County Judge Michael Toomin wrote that Foxx botched the recusal by handing the reins to her top deputy. Because the recusal was invalid, the entire process played out without a real prosecutor at the helm, he wrote — opening the door for Smollett to be charged again by a separate team of special prosecutors.
Smollett’s defense team has launched an effort to get the new indictment thrown out, arguing that the prosecutors were not appointed appropriately. Linn has not yet ruled on that request.
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