Jussie Smollett trial: Man testifies ‘Empire’ actor asked him, his brother to ‘fake beat him up’

Nearly three years after Jussie Smollett reported to police that he was the victim of a racist and homophobic attack, the ex-“Empire” actor’s trial started Monday in Chicago.

Testimony continued Wednesday in the trial, which Judge James Linn expects to take about one week.

Smollett, 39, is charged with felony disorderly conduct for what law enforcement and prosecutors believe was a false police report about the alleged attack. The Class 4 felony carries a prison sentence of up to three years in prison, but experts say if Smollett is convicted he likely would be placed on probation and perhaps ordered to perform community service.

So far in the trial, Smollett’s attorney has asserted that Smollett was a “real victim” of a “real crime” while a lead investigator detailed how detectives went from thinking the attack was a “horrible hate crime” to concluding the ex-“Empire” actor had staged a hoax.

Jussie Smollett timeline: A look back at the ex-‘Empire’ star’s alleged attack, hoax claims

Actor Jussie Smollett arrives at the Leighton Criminal Courthouse for day three of his trial in Chicago on Wednesday, Dec. 1, 2021. Smollett is accused of lying to police when he reported he was the victim of a racist, anti-gay attack in downtown Chicago nearly three years ago. (AP Photo/Charles Rex Arbogast)

Smollett’s alleged attackers, brothers Abimbola and Olabinjo Osundairo, will testify as key witnesses during the trial, but it remains unclear whether Smollett will.

Here is everything that has happened during the trial so far.

Day 3: Abimbola Osundairo testifies Smollett asked him, his brother to stage attack

Osundairo testified Wednesday that Smollett asked him and his brother, Olabinjo, “to fake beat him up” and instructed them on how to carry out the alleged hoax in January 2019. Smollett planned a “dry run” and gave him a $100 bill to buy supplies for the staged attack, Osundairo said.

Osundairo, who worked as a stand-in on “Empire,” said he and his brother agreed because he felt indebted to Smollett for helping him with his acting career.

Osundairo said that a few days prior to the attack, Smollett showed him some hate mail he said he received at the “Empire” studio. Jurors viewed the note, which included a drawing of a person hanging by a noose, with a gun pointed at the stick figure and the letters “MAGA.”

He said a few days later Smollett sent him a text message asking to meet up “on the low,” which he took to meet in private about something secret. Osundairo said when they met up, Smollett asked him “to beat him up” and asked if his brother could help.

“I was confused, I look puzzled,” Osundairo said.

Osundairo said that prior to the staged attack, Smollett drove the brothers to the spot where the attack would occur, and they decided the men should throw bleach on Smollett rather than the original plan to use gasoline. He also said Smollett said a camera in the area would record the attack.

Abimbola "Able" Osundairo, walks through the lobby of the Leighton Criminal Courthouse courtroom during a lunch break in the trial of actor Jussie Smollett Wednesday, Dec. 1, 2021, in Chicago. Osundairo is expected to testify in the trial of Smollett who is accused of lying to police when he reported he was the victim of a racist, anti-gay attack nearly three years ago, in Chicago.

Abimbola “Able” Osundairo, walks through the lobby of the Leighton Criminal Courthouse courtroom during a lunch break in the trial of actor Jussie Smollett Wednesday, Dec. 1, 2021, in Chicago. Osundairo is expected to testify in the trial of Smollett who is accused of lying to police when he reported he was the victim of a racist, anti-gay attack nearly three years ago, in Chicago.

“He wanted a camera to catch it,” Osundairo said, adding that Smollett said he wanted to use the recording for media purposes.

Earlier Wednesday, a Chicago police detective Kimberly Murray testified that Smollett appeared “upset” when he was told that a surveillance camera did not record the alleged assault because it was pointed away from the scene. Murray said she explained to the actor that the cover on the pod camera makes it impossible to know which way it is pointing.

Murray, who interviewed Smollett the morning of the attack, said he told her he had received a threatening phone call days earlier, but he refused to hand over his cellphone, which the detective said could help police piece together a timeline of what happened, and he wouldn’t consent to giving medical records or a DNA swab.

A detective who interviewed Smollett two weeks after the alleged assault — and after the brothers had been arrested — said Smollett started to change his story. Smollett told Robert Graves his attacker had “pale skin,” when he previously said to Marry that one was white. When Graves confronted Smollett about the discrepancy, Smollett said the attacker “acted like he was white by what he said.”

Graves also told Smollett the two brothers were in custody for the hate crime.

“He said ‘It can’t be them, they’re black as sin,’ ” Graves recounted, saying he took that to mean the brothers’ skin is very dark.

Graves testified that during the Feb. 14 interview, Smollett said he would sign a complaint against the brothers, though his attorney stopped him from doing so. About 90 minutes later, Smollett sent one of the brothers a text message, Graves said.

“Brother… I love you. I stand with you,” the message read. “I know 1000% you and your brother did nothing wrong and never would. I am making a statement so everyone else knows. They will not get away with this. Please hit me when they let you go. I’m behind you fully.”

Graves said he concluded Smollett had lied to him.

Actor Jussie Smollett asks photographers to move back as he arrives with his mother Janet, right, at the Leighton Criminal Courthouse for day three of his trial in Chicago on Wednesday, Dec. 1, 2021. Smollett is accused of lying to police when he reported he was the victim of a racist, anti-gay attack in downtown Chicago nearly three years ago. (AP Photo/Charles Rex Arbogast)

Actor Jussie Smollett asks photographers to move back as he arrives with his mother Janet, right, at the Leighton Criminal Courthouse for day three of his trial in Chicago on Wednesday, Dec. 1, 2021. Smollett is accused of lying to police when he reported he was the victim of a racist, anti-gay attack in downtown Chicago nearly three years ago. (AP Photo/Charles Rex Arbogast)

Day 2: Prosecutors recount how Smollett orchestrated a hoax

Prosecutors’ case against Smollett focused on how Chicago police say they determined that what they initially believed was a horrific hate crime was actually a fake assault staged by the ex-“Empire” actor with help from the Osundairo brothers.

The two brothers arrested for the alleged attack on Smollett recounted for Chicago police how the ex-“Empire” actor orchestrated the hoax, telling them via text message to meet him “on the low,” paying for supplies and holding a “dry run” in downtown Chicago, a lead investigator testified Tuesday.

Taking the stand as prosecutors began their case against Smollett, former police detective Michael Theis said he initially viewed the actor as a victim of a homophobic and racist attack and that police “absolutely” didn’t rush to judgment as Smollett’s defense attorney alleged during opening statements Monday.

Theis, who now is assistant director for research and development for the Chicago Police Department, said roughly two dozen detectives clocked some 3,000 hours on what they thought was a hate crime in January 2019. He said they were excited when they were able to track the movements of Abimbola and Olabinjo Osundairo, using GPS, cell phone records and video evidence. Police found no instance where they concluded the men were lying, he added.

“The crime was a hate crime, a horrible hate crime,” Theis said Tuesday, noting Smollett — who is Black and gay — reported that his attackers put a noose around his neck and poured bleach on him. He said the case had become national and international news and that “everybody from the mayor on down” wanted it solved, a reference to then-Mayor Rahm Emanuel.

Jussie Smollett is set for a November trial after Chicago judge won’t dismiss the case

More: Jussie Smollett faces start of trial on charges of staging 2019 hate crime attack

Jussie Smollett arrives at the Leighton Courts Building for the start of jury selection in his trial on Nov. 29, 2021, in Chicago. Smollett is accused of lying to police when he reported that two masked men physically and verbally attacked him, yelling racist and anti-gay remarks near his Chicago home in 2019.

Jussie Smollett arrives at the Leighton Courts Building for the start of jury selection in his trial on Nov. 29, 2021, in Chicago. Smollett is accused of lying to police when he reported that two masked men physically and verbally attacked him, yelling racist and anti-gay remarks near his Chicago home in 2019.

Theis said Smollett declined to provide his medical records related to the attack or a cheek swab so investigators could compare it to DNA that may have been on a rope Smollett said the attackers put around his neck.

“At the end of the investigation, we determined that the alleged hate crime was actually a staged event,” Theis said.

Muhammad Baig, the first officer on the scene after Smollett’s manager reported the attack, said he asked the actor if he wanted to take the rope off his neck and “he responded by saying that he’d like to take it off but he wanted us to see it first.” He also said Smollett asked officers to turn off their body-worn cameras, which they did.

Olabinjo Osundairo, left, and Abimbola Osundairo arrive at the Leighton Criminal Courthouse in Chicago on Feb. 24, 2020. The brothers claim actor Jussie Smollett hired them to stage an attack on him.

Olabinjo Osundairo, left, and Abimbola Osundairo arrive at the Leighton Criminal Courthouse in Chicago on Feb. 24, 2020. The brothers claim actor Jussie Smollett hired them to stage an attack on him.

Jurors were also shown surveillance video Tuesday of the brothers buying supplies, including a red hat they told police Smollett wanted them to wear to resemble supporters of then-President Donald Trump, and a piece of clothesline police said was later fashioned into the noose. Jurors also saw a still image from a video that Theis said showed Smollett returning home the night of the alleged attack, with the clothesline draped around his shoulders. The clothesline was wrapped around his neck when officers arrived, Theis said, leading detectives to believe Smollett may have re-tied it.

On Monday, Uche also suggested that a third attacker was involved. One area resident said she saw a white man with “reddish brown hair” who appeared to be waiting for someone that night, according to police reports. She told a detective that when the man turned away from her, she “could see hanging out from underneath his jacket what appeared to be a rope.”

Uche referenced the woman during his cross-examination of Theis, and Theis acknowledged that he saw that statement but did not send a detective to re-interview her. He said the woman had seen the man a few hours before the alleged attack and that “the rope was a different color.”

Uche also suggested the brothers were homophobic, asking Theis on cross-examination about a homophobic word one of the brothers used. Theis said there was a message containing a slur but that he doesn’t know if that makes the man homophobic. Uche also asked Theis if he was aware one of the brothers attacked someone at the TV studio because he was gay.

“One individual said it happened, but I don’t know that it happened,” Theis said.

Day 1: Smollett’s attorney says actor is a ‘real victim’

Smollett’s defense attorney Nenye Uche said Monday that Abimbola and Olabinjo Osundairo attacked Smollett because they didn’t like him and that a $3,500 check the actor paid the men was for training so he could prepare for an upcoming music video – not as payment for staging a hate crime, as prosecutors allege. Uche also suggested a third attacker was involved and told jurors there is not a “shred” of physical and forensic evidence linking Smollett to the crime prosecutors allege.

“Jussie Smollett is a real victim,” Uche said.

Uche made his opening statement after special prosecutor Dan Webb told jurors that the actor recruited the brothers to help him carry out the fake attack. “When he reported the fake hate crime that was a real crime,” said Webb. Webb also told jurors Smollett was unhappy about how the studio handled the letter he received that included a drawing of a stick figure hanging from a tree and “MAGA.”

Attorney Nenye Uche, left, and Jussie Smollett leave a hearing at the Leighton Criminal Courthouse in Chicago, July 14, 2021.

Attorney Nenye Uche, left, and Jussie Smollett leave a hearing at the Leighton Criminal Courthouse in Chicago, July 14, 2021.

Uche countered that Smollett had turned down extra security when the studio offered it.

Webb said Smollett then “devised this fake crime,” holding a “dress rehearsal” with the two brothers, including telling them to shout racial and homophobic slurs and “MAGA.”

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He said Smollett wanted the attack captured on surveillance video, but the camera he thought would record the hoax was pointed in the wrong direction. He also said the original plan called for the men to throw gasoline on Smollett but that they opted for bleach instead because it would be safer.

Uche portrayed the brothers as unreliable, saying their story has changed while Smollett’s has not, and that when police searched their home they found heroin and guns. “They are going to lie to your face,” Uche told the jury.

Outside the courtroom, Smollett’s brother said it has been “incredibly painful” for the family to watch Smollett be accused of something he “did not do.”

Contributing: Maria Puente, Hannah Yasharoff, Jayme Deerwester and Pamela Avila, USA TODAY, and The Associated Press

This article originally appeared on USA TODAY: Jussie Smollett trial: Man says ‘Empire’ star asked him to stage hoax

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