Special prosecutor rests case against Jussie Smollett at actor’s trial for allegedly staging and reporting phony hate crime

CHICAGO — The team of special prosecutors handling the case against actor Jussie Smollett for allegedly orchestrating and reporting a phony hate crime against himself rested its case late Thursday on the fourth day of Smollett’s trial.

The prosecution, led by veteran attorney Dan Webb, rested its case in chief after calling seven witnesses over three days. After returning from a dinner break, the jurors were informed that the prosecution was finished calling witnesses.

Moments earlier Judge James Linn denied a defense motion for a directed finding of not guilty.

The prosecution’s key witnesses — two brothers who told the jury Smollett directed them to participate in a bogus attack — wrapped up their testimony earlier Thursday. It is alleged that Smollett planned the episode for attention from runners of his television show “Empire,” which has since been canceled.

The second of the two brothers who accuse Smollett of staging the incident 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 Osundairo, a former stand-in on Smollett’s show, “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,” Olabinjo Osundairo 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.

On cross-examination Thursday afternoon, Smollett attorney Tamara Walker began by pointing out a discrepancy between Olabinjo Osundairo’s testimony about the decision to use bleach and what he told a grand jury in 2019.

At the grand jury, Olabinjo 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 Osundairo 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 Osundairo 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?”

Olabinjo Osundairo said 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 Osundairo 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 Osundairo 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 Osundairo 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 Abimbola 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 Osundairo said he responded.

Olabinjo Osundairo’s testimony about Smollet’s plan mirrored that of his brother, whose testimony ended earlier Thursday. He told jurors 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 Osundairo 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 Osundairo to do the hitting because “He didn’t think that I would be able to hold my punches back,” said Olabinjo Osundairo, 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, Abimbola Osundairo strongly denied that their relationship was romantic, and said he did not believe Smollett had any kind of crush on him.

Abimbola Osundairo testified earlier this week that Smollett instructed him and his brother 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.

Abimbola 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 Abimbola 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 Smollett, Allen said.

“Fake attack,” Abimbola Osundairo said.

After the allegedly phony attack, Abimbola 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,” Abimbola 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 Abimbola 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, Abimbola 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,” Abimbola Osundairo replied.

Over more than four hours of questioning by prosecutors Wednesday, Abimbola Osundairo walked jurors through the planning and execution of the attack in minute detail, including Smollett’s request that he and his brother “fake beat him up” because he felt his security on the “Empire” set wasn’t being taken seriously.

The plan culminated, Abimbola Osundairo said, when he and his brother spotted Smollett near his Streeterville apartment around 2 a.m. and, as planned, sprang into action.

“I said, ‘Hey, aren’t you that “Empire” (homophobic slur)?’ and we said the other words, and my brother said, ‘This is MAGA country,’” Abimbola Osundairo testified. “That’s when I proceeded to punch him in the face and tussle. ... I threw him to the ground, put the bruise on his face, then I saw some car lights and then ran away.”

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.

Uche strenuously denied that assertion, but prosecutors argued he should be kicked off the case due to a conflict of interest. After a lengthy closed-door hearing, the judge said Uche could continue to represent Smollett — but could not cross-examine the brothers.

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