Prosecution rests after brothers testify Jussie Smollett directed them to carry out a fake racist and anti-gay attack
By Omar Jimenez, Eric Levenson and Bill Kirkos, CNN
Two brothers testified in court over the past two days that "Empire" actor Jussie Smollett directed them to carry out a fake hate crime while pretending to be Donald Trump supporters in an attempt to get media attention.
Abimbola "Bola" Osundairo and his brother Olabinjo "Ola" Osundairo provided critical testimony on Wednesday and Thursday in Smollett's criminal trial on charges that he staged the attack and falsely reported it to police.
The prosecution rested Thursday evening after three days of testimony in which it called seven witnesses, including the brothers.
Ola Osundairo told jurors that Smollett "had this crazy idea of having two MAGA supporters attack him," and that he wanted "to put that on social media."
"Mr. Smollett asked you to fake attack him?" Deputy Special Prosecutor Sam Mendenhall asked.
"Yes," Ola Osundairo responded.
"Pretending to be Trump supporters?" Mendenhall continued.
"Yes," Ola Osundairo said.
"So he could then post it on social media?" the prosecutor continued.
"Yes," Ola Osundairo answered.
He said that Bola was tasked with hitting Smollett, while Smollett wanted Ola to put a noose around his neck and pour gasoline on him. They ultimately changed gasoline to bleach because, Ola Osundairo said, "I wasn't comfortable pouring gasoline on somebody."
Smollett, who is Black and gay, has said two men struck him, yelled anti-gay and racist remarks, put a noose around his neck and poured bleach on him on a frigid night in Chicago in January 2019. Police initially investigated the incident as a possible hate crime and poured significant resources into solving the case and locating the two men.
But after interviewing them and finding other evidence, authorities instead determined that Smollett paid the men $3,500 to stage the hate crime against him so he could get publicity and a career boost.
Smollett has pleaded not guilty to six counts of disorderly conduct for allegedly making false reports to police that he was a victim of a hate crime. His defense attorney said in opening statements he is a real victim and the men saw the actor as a "mark" or "target."
Thursday's session got heated and defense attorneys called for a mistrial. One of the lawyers alleged Judge James Linn lunged at her, and another said the judge was making facial expressions.
It began when the judge interjected as attorney Tamara Walker repeatedly pressed Ola Osundairo on his use of homophobic words, such as when he referred to a musician friend as a "fruity ass." Linn angrily instructed Walker to move on from her line of "collateral" questioning.
The defense has suggested during the trial that homophobia may have been a motive in a real hate crime attack that night.
In a heated exchange, Walker asked the judge for a sidebar, which he denied at first. After the defense for a second time requested a meeting outside of earshot of the jury, Linn sent the panel out of the room.
Walker and her defense team requested a mistrial.
As the exchange between the judge and the defense quickly escalated, Walker became emotional, at one point sobbing as she paced around a table, claiming Linn was not allowing her to continue a line of questioning that was critical to the defense's case.
Walker also claimed Linn lunged at her while at the sidebar, something Linn vehemently denied.
"When you said the word mistrial, and I know you have some pressures here, I'm stunned that you would consider a mistrial," Linn said. "Ms. Walker, there were objections that had to be sustained and I was trying to get back on point."
"Just because you think you were allowed to go one way, we're all just doing our jobs," Linn told Walker.
"There will be no mistrial," he told the stunned courtroom.
Defense attorney Heather Widell also addressed the judge, stating, "I would also like to go on the record that there are facial objections coming from the bench when there are objections."
"You're great at facial expressions," Linn shot back.
Court ended Thursday night after the defense calling its own witnesses.
Defense sharply questions Bola Osundairo
The brothers delivered the core testimony of the case, stating plainly that the attack was always intended to be fake.
Bola Osundairo was the first of the two brothers to testify, speaking in court on Wednesday and Thursday. He told the court that Smollett "wanted me to fake beat him up," and he agreed to do so because he felt indebted to the actor.
"I believed he could help further my acting career," Osundairo testified. "He told me that we would need another person to fake beat him up. He mentioned could my brother do it. I said yes."
The actor directed them to say "Empire, f****t, n***er, MAGA," fake punch him, pour bleach on him and then run away, he testified.
"Who was in charge of this thing?" Webb asked.
"Jussie was," Bola Osundairo told the jury.
The man also said Smollett first explained the plan to him in a car where Smollett was smoking marijuana.
"Even though he's smoking you still think he's serious?" asked defense attorney Shay Allen.
"He sounded serious," Bola Osundairo responded.
Osundairo said Smollett "wanted to use the fake attack or camera footage for media." He testified that while he didn't expect payment for helping Smollett stage the attack, the actor still gave him a check for $3,500.
In cross-examination, Allen accused Bola Osundairo of having a desire to work security for Smollett and that it became a growing point of tension. Osundairo testified he didn't remember.
"You attacked Jussie because you wanted to scare him into hiring you," accused Allen, to which Osundairo responded, "No."
However, special prosecutor Dan Webb asked whether Smollett ever talked about security at all while this "fake attack" was being hatched and Osundairo responded, "No."
Testimony grew tense at times as Allen asked whether Bola Osundairo had a sexual relationship with Smollett, which he denied, and how he could not have expected the police to get involved if the media attention on the story grew, as Smollett allegedly planned.
"I wasn't thinking," Bola Osundairo said.
"We finally agree on something," Allen responded.
During re-direct examination, Webb honed in on the timing of the alleged hoax on one of the coldest nights in Chicago. "If you had not had advanced discussions with Jussie Smollett how would you know where he would be at 2 a.m. in a polar vortex?"
"I wouldn't," Osundairo responded.
Later, Ola Osundairo testified the brothers had at one point contemplated leaving if the actor didn't show up.
"It was super cold that night. I was freezing the whole time we were out there," he said. "My brother saw him and that's when we continued to approach him."
Osundairo said that's when he put the rope over Smollett's head and poured bleach on him, while trying not to get bleach on Smollett's face to avoid injuring the actor.
Defense witness says Smollett sounded panicked
The first witness called by the defense described what he heard as he talked to Smollett during the encounter.
Brandon Moore, Smollett's former music manager, said he heard "something something MAGA country," then what sounded like scuffling.
"Jussie said, 'Yo, I just got jumped,' " Moore told the court.
Smollett sounded panicked and out of breath, Moore testified.
During cross-examination, deputy special prosecutor Sean Wieber pointed out, "You couldn't see how hard the punches landed," and "you did not witness what happened to Mr. Smollett," to which Moore responded, "Correct."
The defense also called an emergency medicine physician who examined Smollett after the alleged attack and Smollett's publicist at the time, Pamela Sharp.
The prosecution said in its opening statement that Smollett orchestrated the attack for publicity and a career boost. Sharp testified that Smollett earned between $100,000 and $125,000 per episode — about $2 million for a season.
The judge ended the day by telling jurors not to come back until Monday, when they might hear closing arguments and begin deliberating.