Double-jeopardy claim for Jussie Smollett could hark back to landmark case against mob hit man

Megan Crepeau And Jason Meisner, Chicago Tribune on

Published in Entertainment News

The allegations were nearly identical to charges brought -- and then mysteriously dropped -- by Foxx's office last year. Foxx had recused herself from overseeing the prosecution, revealing she'd had contact with a member of Smollett's family early in the investigation at the request of Tina Tchen, Michelle Obama's former chief of staff.

But in appointing attorney Dan Webb as special prosecutor last year, Toomin wrote that Foxx botched the recusal by handing the reins to her top deputy. Because the recusal was invalid, the entire process played out without a real prosecutor at the helm, he wrote.

"Discerning members of the public have come to realize that the 'recusal that really wasn't' was purely an exercise in sophistry," Toomin wrote.

The ruling was reminiscent of his decision in the Aleman case because it essentially invalidated the entire prosecution. Legal experts said the similarities may be the strongest shield prosecutors have against any attempts to get Smollett's new case thrown out.

"Toomin wrote a brilliant opinion in Aleman," veteran defense attorney Richard Kling said. "It ... came to the conclusion, no jeopardy, no double jeopardy."

The experts did raise a few possible avenues for Smollett's attorneys to challenge the new indictment -- but all of them likely would be long shots even without Toomin's finding, they said.


Smollett's attorneys hinted months ago that any new charges would violate his double-jeopardy protections. But those only kick in once a guilty plea has been entered or a trial has begun, experts said.

Alternately, Smollett's attorneys could argue that last year's agreement to drop charges counts as a binding contract, similar to a formal plea, Kling said. New charges would violate that agreement.

Or the defense could try to throw out the case based on the legal principle that prosecutors cannot bring new charges based on the same alleged incident without potentially violating the defendant's right to a speedy trial.

But that may not be successful either, experts said, since the first case was dropped altogether and a new set of prosecutors is starting over completely.


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