CHICAGO — As rumors of a hoax were swirling around “Empire” actor Jussie Smollett’s claim he was the victim of a hate crime attack in downtown Chicago, Smollett allegedly sent a text to one of the two acquaintances being questioned by police.
“Brother .... I love you,” read Smollett’s text to Abimbola Osundairo on the afternoon of Feb. 14, 2019. “I stand with you. I know 1000% you and your brother did nothing wrong and never would. I am making this statement so everyone else knows. They will not get away with this. Please hit me when they let you go. I am behind you fully.”
The text, which had never before been made public, was shown to jurors Tuesday on the second day of Smollett’s trial on charges he hired Osundairo and his younger brother, Olabinjo, to commit a phony racist and homophobic attack on himself in January 2019.
The timing of the text was crucial, as it could easily be construed as an attempt by Smollett to get the brothers to keep quiet.
Earlier that day, Smollett had gone on "Good Morning America" and doubled down on his story that two men had jumped him as he walked back to his apartment on a frigid night, poured bleach on him, put a rope around his neck and yelled racial slurs and a pro-Trump slogan.
At the time, authorities had zeroed in on the Osundairo brothers as the culprits. Soon after the text from Smollett was sent, however, they decided to cooperate with police, and Smollett quickly went from victim to suspect.
Chicago police Detective Michael Theis, one of the lead investigators on the Smollett case, testified Tuesday that he found it unusual that Smollett said he was “making a statement” about the brothers’ innocence, which he had never done before publicly, either before or since.
“To this day, has Mr. Smollett ever come clean about this hate crime?” deputy special prosecutor Samuel Mendenhall asked.
“Not that I’m aware of,” Theis replied.
That question ended four hours of direct testimony from Theis, the prosecution’s first witness, who walked jurors step by step through the investigation, which he said was thorough and meticulous, countering the defense’s assertion during opening statements that Smollett was the victim of a nightmarish rush to judgment.
Police put in more than 3,000 man-hours into the investigation, and took Smollett’s allegations seriously, Theis said.
“This was horrible. I mean the crime was a hate crime, but a horrible hate crime. There was a noose, there was bleach,” Theis said. “It was local news, it was national news, international news. Everyone wanted to know what happened, from the mayor on down, everybody wanted answers.”
Theis said Smollett was considered a victim from the outset. But ultimately, Theis said, police “determined that the alleged hate crime was actually a staged event and that it did not occur.”
It was a hoax, Theis said. And when prosecutors asked who orchestrated the hoax, his answer was brief: “Mr. Jussie Smollett.”
Theis, who was initially put in charge of hunting down surveillance video, walked jurors through an extensive compilation of camera footage from before and after the attack.
Prosecutors allege that the Osundairos, two brothers Smollett knew from the “Empire” set, helped him carry out the fake attack in exchange for a $3,500 payout. Smollett’s defense team, however, has previously stated they believe the brothers actually attacked Smollett with the help of at least one other person, making Smollett a victim twice over: The victim of a hate crime and a frame-up.
In essence, nobody disputes that Smollett was attacked. The question is whether or not the attack was staged.
No footage exists of the attack itself. But when police found video of two people walking near the area of the attack, one of whom was wearing a red hat, Theis said they “got excited. We thought, we’re on the right track here.”
They found footage of the two men walking around the surrounding blocks at 2 a.m. in frigid temperatures, and tracked their cab back to the Lakeview neighborhood, Theis testified.
“We felt that we had the two individuals we were looking for,” Theis said. Not only did they fit the description, they paid cash for the cab and walked for nearly a mile back home. “That told us they were trying to hide their movements.”
Then there was a breakthrough: A subpoena to Uber showed the name of the person who had ordered a rideshare on the night of the attack, matching the area where they had tracked the suspects. It was Olabinjo Osundairo.
The brothers were ultimately arrested on suspicion of their involvement in the attack. While they were in police custody, Smollett gave an interview on "Good Morning America" saying there was no doubt in his mind that the two men in the surveillance footage were his attackers. Jurors viewed the video, which Theis characterized as a significant development in the case.
The brothers, who had retained an attorney, agreed after Smollett’s interview to tell police what happened, Theis said. It was in fact Smollett who recruited them to help carry out the phony attack, they said.
Police then set out to corroborate or refute the brothers’ account, a probe that included a review of more video footage and cellphone records. Their claims checked out, Theis said.
Camera footage seemingly backs up the Osundairo’s story that Smollett picked them up in an alley on Jan. 25, and similar corroboration was found for an alleged Jan. 27 “dry run” before the Jan. 29 attack, Theis said.
And jurors viewed video of the Osundairo brothers running all the errands one would need to run before committing an alleged hoax hate crime: The Crafty Beaver for rope, a beauty supply store for masks and hats, the bank to deposit the check. The brothers paid their bill at the beauty supply with a $100 bill Smollett gave them, Theis said.
Jurors also were shown the now-infamous $3,500 check Smollett wrote to Abimbola Osundairo, purportedly as a payoff for the brothers’ help. “5 week nutrition/workout program” is written in the memo line; Smollett’s team has previously stated that the check was payment for training so he could get in shape for an upcoming video shoot.
Early on in his testimony, Theis was shown a photo of the Osundairo brothers, who are Black. Smollett initially told police that his attackers may have been white.
“Are the brothers in the photograph white?” Mendenhall asked Theis, who replied, “No.”
“Are you sure?”
“Yes,” Theis said.
Near the end of his four hours of direct testimony, Theis took jurors through a series of photographs of the area where Smollett alleged he was attacked, including his high-rise apartment building that had multiple entrances and exits on various sides.
Theis said it would be implausible for the Osundairo brothers to decide to lay in wait for Smollett to come out so they could attack him unsuspectingly. Instead, the surveillance footage showed them milling about in the area, waiting to confront Smollett at a predetermined location, he said.
The Osundairos are expected to be centerpiece witnesses for the prosecution later this week.
Smollett’s defense attacked the Osundairos in opening statements Monday as liars and criminals who hated Smollett “because of who he is as a person.”
The defense will have a chance to present witnesses when prosecutors wrap up their main case, which is expected to happen later this week. Smollett himself could also take the stand.
Before court Tuesday, Smollett’s older brother, Jojo, read a statement of support saying it has been “incredibly painful” for the family to watch the case unfold.
“We’re confident in his legal team, and we look forward to people hearing the actual facts of this case,” Smollett told the media in the lobby of the Leighton Criminal Court Building. “We love him. We’re here to support him, all of us, and to lift him up.”
As the parties assembled in the seventh-floor courtroom, Jussie Smollett’s lawyer, Nenye Uche, also had a bit of a message for the press. He walked up to courtroom sketch artists with a smile on his face.
“Really?” he said jokingly of the sketches of him from the day before, when he gave an opening statement in the case. “Really? I looked like an African bullfrog!”
Opening statements began Monday evening to a jury of six men and six women. Special prosecutor Dan Webb ran through the now-familiar allegations against Smollett, beginning with a “hate” letter sent to the “Empire” studio on Chicago’s West Side days before the alleged attack.
Webb said that while “to this day” law enforcement has not determined who sent the letter, Smollett was upset that the studio didn’t take it more seriously, so he concocted the plan to pay the Osundairos, whom he knew from the set of “Empire,” to assault him while yelling slurs and putting a rope around his neck to make it look more like a lynching.
But Smollett’s attorneys said it was the actor, who is Black and openly gay, who was in fact the real victim, not only of a homophobic attack but also of a “tremendous rush to judgment” by police and prosecutors that ruined his career and reputation.
And the Osundairo brothers are opportunistic liars who were using him to advance their own careers, defense attorney Uche said in his opening statement.
In his opening remarks, Uche said there’s no physical or forensic evidence tying Smollett to the alleged hoax. He also said there’s no evidence Smollett was upset with situation at “Empire,” as the prosecution has alleged the actor carried out the alleged hoax to call attention to himself and better his position with the show.
“Jussie was not a person who liked attention. Even his publicist was frustrated at him for that,” he said. “It’s fantasy.”