Jussie Smollett’s attorneys want the plaintiff released from prison as they appeal his conviction for lying to the Chicago police about a racist and homophobic attack and a 150-day prison sentence handed down by a judge.
CHICAGO – Jussie Smollett’s lawyers say they are planning to appeal almost everything that has happened in court in recent months, from the actor’s December sentence for lying to the police to the 150-day sentence handed down by the judge last week. . And they want the actor to be released from prison immediately rather than waiting for the result.
Now, the question of whether Smollett should remain in prison during these planned appeals is before a state appeals court and while the appeals could take months to resolve, the question of whether Smollett remains locked up will be resolved much more quickly.
This is because Smollett’s attorneys asked in a motion to the First District Court of Appeals to suspend the prison sentence and allow Smollett to send bail so that he can be out of custody during the appeal process. And they asked the court to postpone Smollett’s ordered payment of $ 140,000 in fines and restitution that Cook County Judge James Linn ordered as part of his sentence.
As Smollett’s lawyers see it, such an order is justified because it is almost certain that Smollett will complete his sentence of 150 days in prison – which could be reduced to 75 days if he conducts himself in prison – before the conviction and conviction appeals. sentence are decided. They also say it is important for Smollett to be released because they are concerned about his mental health if he remains in protective custody in the prison and fear that he may be attacked by other inmates.
In an interview with the Associated Press, David Erickson, a former state appeals judge who teaches at Chicago Kent College of Law, explained what happens next.
First of all, the court must hear Special Attorney Dan Webb. Webb had until Wednesday to respond to the motion filed by Smollett’s legal team, led by attorney Nene Uche. When that happens, the appeal will go before a judge.
That justice, Erickson said, can end things right there.
“If the one judge dismisses the motion, that’s it,” Erickson said. “It means the court won’t listen to you.”
It also means that the lawyers will receive nothing more than a brief and precise notice that the motion has been rejected. No reason or statement of any kind will likely be given.
Nor will lawyers be able to stand before the judge and present their case. The only thing the judge will use is the papers that the lawyers have filed.
But that first justice can make things go, if he believes the motion has some validity. Then, justice takes the motion to two other judges for review. The judges might call the lawyers to make oral arguments, but they can also only rely on the papers the lawyers have filed.
Two of the three judges must agree to uphold the motion. In this case, the lawyers will be informed that the motion has been accepted. This time, Erickson said, they will explain their reasoning.
If this happens, the appeals court can fix Smollett’s bail or send the case back to Linn for bail. And with that, Smollett can get out of jail.
What arguments will influence the judges, of course, is not clear. But Erickson said what is clear is that the argument that Smollett will complete his sentence before his appeal is decided is not a starting point.
“It’s not a legal argument and the appeals court only considers legal errors,” he said, adding that while motions such as those filed by Smollett’s legal team are common, they are often not granted.
Erickson said the fact that the judge spoke for over half an hour in Smollett’s conviction suggested that he expected the sentence to be appealed.
“The standard that they (Smollett’s lawyers) have to show is whether or not the judge abused his discretion in his judgment,” he said. And speaking the whole time he did and addressing his reasoning specifically as he did, “He (Linn) would make sure the (appellate court) understood why he did what he did and that he didn’t abuse. of his discretion. “
A rejection could come in a matter of hours or a day and if the judges want to know more it could take a few days or perhaps a week to make a decision. But Erickson said these things are regularly decided very quickly.
“They could (rule) immediately or overnight or (in) a week,” Erickson said.
Check out The AP’s full coverage of the Jussie Smollett case.