Empire actor Jussie Smollett charged for allegedly lying about attack, police say

Chicago police say Empire actor Jussie Smollett has been charged with felony disorderly conduct for allegedly filing a false police report when he reported that he was attacked by two masked men.

Department spokesman Anthony Guglielmi said the Cook County State's Attorney's office approved the felony charge on Wednesday afternoon. The charge is a Class 4 felony that carries a possible prison sentence of 1-3 years. It could also force Smollett to pay for the cost of the investigation, but he could also receive probation.

Authorities were trying to get in touch with Smollett's attorneys to "negotiate a reasonable surrender," Guglielmi said. That could involve Smollett turning himself in at a Chicago police station.

He said he did not have a time frame for how long the actor would be given.

"We are trying to be diplomatic and reasonable, and we're hoping he does the same," Guglielmi said.

Smollett, who plays the role of Jamal Lyon on the hit Fox TV show, said he was attacked by two masked men at around 2 a.m. on Jan. 29 as he was walking home from a Subway sandwich shop downtown.

The actor said the men beat him, made racist and homophobic comments and yelled, "This is MAGA country" — an apparent reference to U.S. President Donald Trump's campaign slogan, "Make America Great Again"— before looping a rope around his neck and fleeing.

In a statement, attorneys Todd Pugh and Victor Henderson said Smollett "enjoys the presumption of innocence, particularly when there has been an investigation like this one where information, both true and false, has been repeatedly leaked."

Character not being written off show

Fox Entertainment and 20th Century Fox Television issued a statement Wednesday saying Smollett "continues to be a consummate professional on set" and that his character isn't being written off the show. The statement followed reports that Smollett's role was being slashed amid the police investigation into the reported attack.

Investigators went through hundreds of hours of private and public surveillance video from the area where Smollett said he was attacked but couldn't find footage of the alleged beating.

Police spokesperson Anthony Guglielmi confirmed that a search warrant was executed at the Chicago apartment of two brothers who were questioned in the alleged attack. (Nader Issa/Chicago Sun-Times via AP)

They did find and release images of two people they said they wanted to question. And last week, police picked up the two brothers at Chicago's O'Hare International Airport as they returned from Nigeria and questioned them about the attack. They also searched the men's apartment.

The men, who were identified to multiple media outlets by their attorney as Abimbola "Abel" and Olabinjo "Ola" Osundairo, were held for nearly 48 hours on suspicion of assaulting Smollett before being released Friday.

The day after they were released, police said the men provided information that had "shifted the trajectory of the investigation," and detectives requested another interview with Smollett.

Police said one of the men had appeared on "Empire," and Smollett's attorneys said one of the men is the actor's personal trainer, whom he hired to help get him physically ready for a music video. The actor released his debut album, "Sum of My Music," last year.

Smollett was charged by prosecutors, not the grand jury. The police spokesman said the brothers appeared before the panel to "lock in their testimony."

Probation, restitution most likely, former prosecutor says

Former Cook County prosecutor Andrew Weisberg said judges rarely throw defendants in prison for making false reports, opting instead to place them on probation, particularly if they have no prior criminal record.

Smollett has a record — one that concerns giving false information to police when he was pulled over on suspicion of driving under the influence. According to records, he was also charged with false impersonation and driving without a license. He later pleaded no contest to a reduced charge and took an alcohol education and treatment program.

Another prospective problem is the bill someone might receive after falsely reporting a crime that prompted a nearly monthlong investigation, including the collection and review of hundreds of hours of surveillance video.

The size of the tab is anyone's guess, but given how much time the police have invested, the cost could be huge.

Weisberg recently represented a client who was charged with making a false report after surveillance video discredited her account of being robbed by three men at O'Hare Airport.

For an investigation that took only a single day, his client had to split restitution of $ 8,400 US, Weisberg said. In Smollett's case, "I can imagine that this would be easily into the hundreds of thousands of dollars."

Also Wednesday, Chicago's top prosecutor, Cook County State's Attorney Kim Foxx, announced that she had recused herself from the investigation.

Her office explained that Foxx made the decision "out of an abundance of caution" because of conversations she had with one of Smollett's family members just after the report. When the relative expressed concerns about the case, Foxx "facilitated a connection" between the family member and detectives, according to a statement.

Foxx said the case would be handled to her first assistant, Joseph Magats, a 28-year veteran prosecutor.

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