The decision came after a Cook County judge sentenced Smollett last week to immediately begin serving 150 days in jail for his conviction on five felony counts of disorderly conduct for lying to police.
In an outburst immediately after the sentence was handed down, the former star of the TV show Empire proclaimed his innocence and said “I am not suicidal. And if anything happens to me when I go in there, I did not do it to myself. And you must all know that.â€
The appeals court, in a 2-1 decision, said Smollett could be released after posting a personal recognisance bond of $205,000, meaning he doesn’t have to put down money but agrees to come to court as required. It was unclear late Wednesday how soon he may be released.
Smollett’s attorneys had argued that he would have completed the sentence by the time the appeal process was completed and that Smollett could be in danger of physical harm if he remained locked up in Cook County Jail.
The office of the special prosecutor called the claim that Smollett’s health and safety were at risk “factually incorrect,” in a response to the motion, noting that Smollett was being held in protective custody at the jail. Smollett was being held in his own cell, and was being monitored by security cameras and an officer, the Cook County Sheriff’s Office said after he began serving his sentence last week.
Deputy special prosecutor Sean Wieber also questioned the idea of releasing Smollett because his sentence will be complete prior to an appellate court ruling, saying that under that logic every person facing a sentence shorter than a few years would be able to remain free.
“That simply is not, and cannot be, the rule,†Wieber wrote.
The court’s decision marks the latest chapter in a strange story that began in January 2019 when Smollett, who is Black and gay, reported to Chicago police that he was the victim of a racist and homophobic attack by two men wearing ski masks. He reported that the men assaulted him as he walked near his home in downtown Chicago to get something to eat. One of the men, Smollett said, put a noose around his neck.
The manhunt for the attackers soon turned into an investigation of Smollett himself and his arrest on charges that he’d orchestrated the attack and lied to police about it.
The investigation revealed Smollett paid two men he knew from his work on Empire to stage the attack.
A jury convicted Smollett in December on five felony counts of disorderly conduct — the charge filed when a person lies to police. He was acquitted on a sixth count.
Judge James Linn sentenced Smollett last week to 150 days in jail, but with good behavior he could have been released in as little as 75 days. Smollett maintained his innocence during the trial.
Appellate Court Justices Thomas Hoffman and Joy Cunningham signed the order granting Smollett’s request to be released, which noted he was convicted of non-violent offenses. Justice Maureen Connors dissented.
