How Jussie Smollett’s overturned conviction is similar to Bill Cosby’s

The criminal cases of actors Jussie Smollett and Bill Cosby, both Black, high-profile entertainers found guilty before their convictions were overturned, differ widely in details but share some parallels.

The Illinois Supreme Court on Thursday referenced a key similarity between the cases – violation of both of the men’s due process rights – in itis opinion, deciding Smollett’s hate-crime hoax conviction should be dismissed as a result of prosecutorial issues.

Pennsylvania’s highest court vacated Cosby’s 2018 conviction on sexual assault charges for similar reasons.

“The initial agreements made by the original prosecutors, later disregarded by their successors under public pressure, created a breach of trust that certainly spoiled their respective proceedings,” Brett M. Rosen, a New Jersey-based criminal defense attorney, told CNN.

“Ultimately, this led to overturning of their convictions, as the courts recognized the inherent injustice in prosecuting individuals based on shifting promises, external influences and public opinion,” Rosen said.

Neither Smollett nor Cosby can be retried on the charges.

Here’s what the cases have in common.

Nearly three years ago, Smollett was found guilty on five of six felony counts of disorderly conduct. He was accused of orchestrating a hate-crime hoax against himself in Chicago in January 2019, in which two brothers, Olabinjo and Abimbola Osundairo, said he paid them US$3,500 to carry out a staged attack. Smollett had pleaded not guilty.

The trial marked the second time charges had been brought against Smollett related to the alleged hoax after previous charges were dropped. But Illinois’ highest court ruled the actor, who was fired from Fox television series “Empire,” should not have been prosecuted twice.

“Because the initial charges were dismissed as part of an agreement with defendant and defendant performed his part of the agreement, the second prosecution was barred,” Justice Elizabeth M. Rochford wrote in the court’s 5-0 decision, with two justices abstaining.

Cosby, who in April 2018 was found guilty of three counts of aggravated indecent assault, served three years of a three- to ten-year prison sentence in Pennsylvania for allegedly drugging and sexually assaulting Andrea Constand, a former Temple University women’s basketball operations director, at his home in 2004.

The comedian and actor once known as “America’s Dad” walked free in June 2021 after the Pennsylvania State Supreme Court ruled his criminal charges and convictions violated his due process rights.

A previous prosecutor had declined to prosecute Cosby to urge him instead to sit for a civil deposition eventually used against him in his criminal trial, CNN previously reported.

“If you try to see both cases as celebrity privilege, or you know, ‘they’re famous, so they’re getting off,’ I don’t think that’s the key here,” entertainment attorney Domenic Romano told CNN.

“The similarity lies in the fact that the state didn’t keep its promise, or the state going back on its word, and I think we would have seen the same result with an ordinary citizen with legal representation,” Romano said.

He added the overturned convictions do not mean the courts are “exonerating or vindicating or endorsing the behavior of either man.”

Both Smollett’s and Cosby’s cases involved promises made by prosecutors.

A Cook County, Illinois, grand jury indicted Smollett in March 2019 on 16 felony counts of disorderly conduct for allegedly lying to Chicago police, to which the actor pleased not guilty.

More than two weeks later, the Cook County State’s Attorney’s Office announced it would drop all charges against Smollett, taking into consideration his “volunteer service in the community and agreement to forfeit his bond to the City of Chicago,” according to the opinion.

A trial court granted the state motion not to prosecute and to release Smollett’s US$10,000 bond to the city. He was expected to perform 15 hours of community service, according to the court’s decision.

“It was unreasonable that he would have done those things and then expect the state not to honor its word,” Romano said.

The deal prompted backlash, with then-Mayor Rahm Emanuel calling it “a whitewash of justice,” The Associated Press reported.

A Cook County circuit judge approved appointing a special prosecutor in June 2019 to handle an independent investigation of Smollett’s case.

Smollett was later indicted on six charges of disorderly conduct. He was convicted on five charges in December 2021.

“A special prosecutor was appointed and sought to undo what the state had agreed to, and the (Illinois Supreme Court) said, ‘no, we’re not going to allow that because it’s not just, it’s not fair, and the state must be bound by its word,'” Joseph Cammarata, a Washington, DC-based attorney, told CNN.

 

Former Montgomery County District Attorney Bruce Castor, who had initially worked on Cosby’s civil case in 2005, determined there was not enough credible and admissible evidence to win in a criminal trial, according to the Pennsylvania State Supreme Court’s 2021 decision.

To provide Constand with some form of justice, Castor filed a lawsuit for money damages.

“By removing the threat of a criminal prosecution, D.A. Castor reasoned, Cosby would no longer be able in a civil lawsuit to invoke his Fifth Amendment privilege against self-incrimination for fear his statements could later be used against him by the Commonwealth,” the court’s decision states.

“(Castor) had promised not to charge him in the Andrea Constand case if he testified in the civil case, so Cosby relied to his detriment on that promise,” Romano said.

“He testified without invoking his Fifth Amendment right … and then he suffered the consequences,” he added.

Though Constand settled in the civil suit with Cosby and the case records, including Cosby’s depositions, were sealed, the records were unsealed in 2015 by a federal judge who presided over the civil suit.

By then, a new district attorney had taken over in Montgomery County and, “despite her predecessor’s decision not to prosecute Cosby, upon release of the civil records, District Attorney (Risa) Ferman reopened the criminal investigation of Constand’s allegations,” the Pennsylvania supreme court judges said.

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Melissa Mahtani, Melissa Macaya, Mike Hayes, Veronica Rocha, Fernando Alfonso III, Chris Boyette, Bill Kirkos, Omar Jimenez, Steve Almasy, Ashley Killough, Andy Rose, Ray Sanchez, Sonia Moghe, Kristina Sgueglia, Paradise Afshar and Christina Maxouris contributed to this report.