Double Jeopardy for Jussie Smollett Explained

Jussie Smollet has filed a notice of appeal of his criminal conviction and sentence on five counts of disorderly conduct. We discussed Mr. Smollett’s sentencing hearing earlier this week here.

On appeal, Smollett claims a violation of his constitutional right against double jeopardy. Specifically, he argues that the punishment he received for the same offense under a prior indictment — for which he forfeited a $10,000 bond and performed community service — precluded the trial and conviction on double jeopardy grounds.

What is double jeopardy?

The Double Jeopardy Clause in the Fifth Amendment of the United States Constitution prohibits anyone from being prosecuted twice for the same crime. Specifically, the Fifth Amendment states that “[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb….” Thus, it precludes a second prosecution for the same offense after an acquittal or a conviction (not a mistrial) and multiple punishments for the same offense. (But note that in many cases, a person faces state and federal prosecutions stemming from the same set of events without it violating the double jeopardy clause.)

So, if a jury or judge acquits a criminal defendant, prosecutors cannot seek to re-try the case just because they disagree. Similarly, when someone enters a plea deal and accepts the punishment, prosecutors cannot later put them on trial or attempt to punish further. 

Jussie Smollett’s double jeopardy argument on appeal hinges on whether Smollett was punished twice for the same offense. Smollett claims he relied on an agreement with prosecutors to drop the charges, for which Smollett forfeited his $10,000 bail bond and did some community service. For whatever it’s worth, one of Smollett’s lawyers has publicly stated that there were no “deals.” Instead, the defense simply allowed the City to keep the bond money, and Smollett promised a few hours of voluntary community service.

The Background of the Jussie Smollett Case

On Dec. 9, 2021, a jury found Smollett guilty of lying to the police for staging a hate crime against himself. Smollett made false reports to the police to perpetuate his hate crime hoax, triggering charges for disorderly conduct. Trial Judge James Linn sentenced Smollett on Mar. 11, 2022, to 150 days in jail, 30 months of felony probation, a $25,000 fine and restitution of $120,000 (acknowledging that Smollett had previously agreed to forfeit a $10,000 bail bond).

The Original Charges Against Smollett

This timeline is essential to understand the arguments relating to Smollett’s claim on appeal about the violation of his double jeopardy rights.

The alleged attack occurred on Jan. 29, 2019. One month later, on Feb. 20, 2019, Chicago police charged Smollett with disorderly conduct and filing false police reports. 

On Mar. 7, 2019, a formal grand jury indictment followed, containing 16 counts stemming from the Jan. 29 incident. Smollett posted a $10,000 bail bond in response. A week later, on Mar. 14, 2019, Smollett pleaded not guilty to the charges in that original indictment. 

Smollett and the Prosecution’s “Agreement”

Then, at a hearing on Mar. 26, prosecutors dropped the charges, announcing an “agreement” with the defendant akin to a non-prosecution agreement. Based on Smollett’s “agreement” to forfeit his $10,000 bail bond and perform community service, prosecutors moved on the record to dismiss or not prosecute Smollett. Smollett never changed his original “not guilty” plea to the charges. This “agreement” — referred to as a non-prosecution agreement or “pretrial diversion” — is crucial to the “double jeopardy” argument on appeal. Evidence of the agreement is in the Mar. 26 hearing transcript.

The Second Indictment Against Smollett

Several months later, the court approved a special prosecutor to review the case against Smollett. On Feb. 11, 2020, the special prosecutor obtained a new indictment containing six counts of disorderly conduct based on false statements Smollett told Chicago police during an interview on Feb. 14, 2019. 

However, Smollett argues, among other things, that when prosecutors dropped the charges in March, they were fully aware of allegedly false statements to the police on Feb. 14, 2019. As such, they cannot form the basis of the second indictment. 

Thus, Smollett immediately moved to dismiss the second indictment based on double jeopardy, arguing that it violated the non-prosecution deal a year earlier, On June 12, 2020, the court rejected Smollett’s double jeopardy argument, allowing the case to proceed to trial, conviction and sentencing.  

The Double Jeopardy Argument on Appeal

As noted above, the double jeopardy clause protects a person from multiple punishments for the same offense. Critical to the analysis of Smollett’s appeal will be three issues…

What was the scope of the non-prosecution agreement?

In some semi-formal shape or form, prosecutors entered into a non-prosecution deal with Smollett, disclosed at a court hearing in Mar. 2019. This hearing occurred after the false statements to police in Feb. 2019, which were then included in a subsequent indictment. 

Defendants and their counsel need to beware. Here, Judge Linn ruled that the special prosecutor had the right to file new charges, even if related to the same investigation and offenses — lying to police about a hate crime in Jan. 2019. 

In general, non-prosecution agreements must be documented in scrupulous detail to ensure they hold up. Sometimes a non-prosecution dismissal does not operate as a complete waiver of the right to prosecute in the future. But the prosecutor’s statements about a “non-prosecution” deal are somewhat vague. And there is no explicit promise that there would never be a related prosecution, which is precisely what happened.

Was there a pretrial diversion agreement?

The same applies to an alleged pretrial diversion agreement with Smollett. Pretrial diversion is another form of disposition in a criminal case. In Illinois, it refers to a prosecutor’s decision to offer an offender a diversion program on the condition that the criminal charges against the offender will get dismissed after a specific time period. Alternatively, prosecutors will not charge the case at all if the offender successfully completes the diversion program. 

Courts recognize that pretrial diversion can form the basis of double jeopardy. And it is possible that with an adequately formalized pretrial diversion agreement, Smollett’s case could have been over. But the evidence of a pretrial diversion deal for Smollett is thin. There does not appear to be the standard Illinois pretrial diversion paperwork one would expect to see. Significantly, the Mar. 2019 court hearing transcript does not mention the diversion deal either.

Was Smollett “convicted” and “punished” to bar the second prosecution under double jeopardy?

Another significant issue arises because Smollett never pleaded guilty (or no contest) to the original charges, raising the question of whether there was a conviction in the first case for double jeopardy to apply. Some observers in the media claim this could be fatal to Smollett’s double jeopardy arguments. 

For example, some argue that there can be no punishment under the law without a conviction. If so, the fact that Smollett surrendered the $10,000 bail bond and did some hours of community service might not constitute “punishment” sufficient to invoke the double jeopardy clause.

Again, it appears that proper procedures and documentation might have helped the defendant here. Courts recognize the payment of fines and community service as sufficient legal punishment. There are many cases where a fine and community service is the punishment and penalty a defendant receives. Still, here prosecutors argue that Smollett did that voluntarily and not as a condition of resolving the criminal charges for good. All of those issues will be hotly contested on appeal. 

Agreements Need To Be Documented — Always

Criminal defendants and their counsel know they must be on guard and document all agreements with prosecutors in meticulous detail. Here, Smollett relied on a non-prosecution deal that does not adequately nail down its scope and is too vague to bar the subsequent prosecution.

Defense counsel alludes to a pretrial diversion agreement with the Cook County prosecutor’s office. But the necessary documentation and structure are also lacking. There was no formal plea deal either. 

Smollett may have believed his case was over and the negotiated resolution was binding. Then, everything changed. We await the analysis of the state court of appeals in Illinois for more clarity.