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Defense rests in Jussie Smollett trial after prosecution contrasts his version of events with other testimony

<i>KAMIL KRZACZYNSKI/AFP/Getty Images</i><br/>Jussie Smollett
AFP via Getty Images
Jussie Smollett

By Omar Jimenez, Bill Kirkos, Eric Levenson and Steve Almasy, CNN

Jussie Smollett’s defense rested its case Tuesday after the former “Empire” actor testified that he was the victim of a real anti-gay and racist hate crime in Chicago in January 2019 and denied that he staged the attack for media attention.

Smollett, 39, has pleaded not guilty to six counts of disorderly conduct for filing false police reports. The charge is punishable by up to three years in prison.

Closing arguments are set to take place Wednesday morning, followed by jury instructions and deliberations.

Smollett, who is Black and gay, took the stand in his own defense Monday and Tuesday and laid out his version of the alleged attack, cast doubt on the motivations of the prosecution’s key witnesses, and explained his distrust for police. In cross-examination, though, prosecutors contrasted his testimony with other evidence in the case that they say proves he set up the hoax attack and lied to police about it.

The trial, which began last week, is the culmination of a case that began on the frigid night of January 29, 2019, when Smollett told police two men had attacked him, made anti-gay and racist comments, poured bleach on him and put a noose around his neck. Celebrities, politicians and advocacy groups rallied behind the actor, and police poured significant resources into solving the case.

But authorities soon came to believe the actor had paid two acquaintances – brothers Bola and Ola Osundairo – $3,500 to fake a hate crime attack in order to garner sympathetic media coverage.

Authorities brought charges of disorderly conduct against Smollett, but Cook County State’s Attorney Kim Foxx agreed to drop the charges weeks later. However, a special prosecutor appointed to the case then brought charges against him last year.

The prosecution sought testimony last week from five police investigators and the Osundairo brothers, who said that Smollett concocted the hoax and directed them what to say and do. Bola Osundairo said he agreed to the plan because, “I believed he could help further my acting career.”

Defense attorneys have argued Smollett was a real victim of an attack and have suggested the Osundairo brothers had other motivations. The defense called seven witnesses in all, highlighted by Smollett’s own testimony.

The prosecution declined to call any rebuttal witnesses.

Prosecution picks at Smollett’s testimony

Special prosecutor Dan Webb’s cross-examination of Smollett began Monday afternoon and resumed Tuesday morning as he compared Smollett’s testimony with testimony from the Osundairo brothers.

Last week, the brothers testified Smollett reached out to them in the days before January 29, 2019, with an idea to carry out a fake anti-gay and racist attack. Smollett rejected that in cross-examination Tuesday.

“I fully deny that. That never happened,” he said emphatically.

During his eight hours of testimony, Smollett denied he ever told the brothers to buy a red hat to look like Trump supporters or any items in particular. He also said he never told them to do any sort of rehearsal of the alleged fake attack.

On January 27, 2019, two days before the incident, Smollett picked up the Osundairo brothers for what prosecutors described as a “dry run” of the purported scheme. However, Smollett told jurors he actually reached out to Bola Osundairo for a workout, and Ola Osundairo got in the car as well.

Smollett said he picked the brothers up at their north Chicago residence because Uber prices were getting expensive and drove them back to his apartment building downtown with the purpose of going up to his gym and working out. However, footage of the vehicle shows the group riding around Smollett’s neighborhood and no one ever got out.

Smollett testified he was on his phone, texting about doing an interview and that Ola being there was “weird,” so he decided to cancel the workout.

“It was easier to just use the interview as a reason, ‘Well, now we can’t really work out, so I’ll drive you back,’ ” he said.

The vehicle passed the staircase three times where the alleged attack later unfolded. Smollett said the staircase was “around my apartment” and he denied he told the brothers that was where he wanted an attack to take place.

Webb and Smollett engaged in a series of contentious exchanges during cross-examination, particularly as Webb read one of Smollett’s Instagram messages to Bola Osundairo from January 28, 2019.

Webb began to read aloud a message that included the word “n***a,” as Smollett winced and shook his head. Then Webb moved to another of Smollett’s messages, starting with “n***a” again, but this time Smollett cut him off.

“Can you just say ‘the n-word’ or spell the word?” Smollett said. “Out of respect for every African American here.”

Webb agreed, and focused on the multiple flight status updates Smollett gave through Instagram messages as he was delayed in returning back to Chicago from New York. Smollett admitted that Bola Osundairo called him at 12:49 a.m. when the actor finally landed on January 29.

Bola Osundairo testified last week that this call was Osundairo asking what time the staged attack was going to take place. But under oath Tuesday, Smollett denied that ever happened.

Smollett said the two had initially been scheduled to work out at his apartment January 28, but agreed that if he got in after 11 p.m. they would reschedule their workout for 9:30 a.m.

Webb asked whether Osundairo ever showed up at 9:30 a.m. the next morning.

“I don’t know,” Smollett responded.

Webb pressed further that there were no messages about canceling the workout either from Smollett or Osundairo, which Smollett stressed was because there were more “important” matters to deal with at the time.

The actor told authorities he was attacked around 2 a.m. on January 29.

Smollett put rope back around neck for police to see

In his testimony Monday, Smollett laid out his version of what happened on the night of January 29, 2019.

He told the court he was walking back to the staircase of his building after returning from a Subway sandwich shop when he heard two people yell the word “Empire” and anti-gay and racist slurs. The men then walked toward him very quickly and attacked, Smollett testified.

He did not realize until afterward there was a rope tied around his neck, he testified, “because I was getting my ass whooped.”

In cross-examination, Webb questioned Smollett about the noose on his neck when police arrived. He pulled up side-by-side images of Smollett — one with the noose on while walking into his building and one when police arrived — and noted differences in the appearance of the rope.

Smollett denied tampering with the rope. He testified he took the noose off after getting back to his building. However, his manager told him not to mess with evidence, he testified, so he put the rope back around his neck before police arrived.

One of the officers who testified early last week for the prosecution said he arrived to find Smollett with a noose around his neck.

“My first reaction was to ask if he wanted to take it off… he responded by saying he’d like to take it off but he wanted us to see it first,” Officer Muhammad Baig testified.

Smollett says he had sexual relationship with witness

Smollett’s testimony also outlined his relationship with Bola and Ola Osundairo, who he knew from the set of the TV show “Empire.”

Prosecutors say the brothers were paid by Smollett to stage an attack because he was disappointed in the way executives with the TV show responded to a hate letter he received. The defense has countered Smollett had paid the men for training and nutritional advice.

The defense has suggested at points during the trial that homophobia may have been a motive in a real hate crime attack against Smollett.

In his testimony, Smollett said Bola Osundairo would help him get drugs, including cocaine. He also said the two had forged a sexual relationship. Smollett testified they got a private room at a Chicago bathhouse one night and “did more drugs and like, made out.”

On a separate occasion, Smollett told jurors he and Bola Osundairo snuck away from his brother after the three were at a female strip club together. Smollett testified they again got a private room and “made out a little bit, masturbated together.”

Smollett’s testimony contradicted that of Bola Osundairo last week, who denied they had a sexual relationship and said he “didn’t know” there was even any sexual tension.

The defense has struggled to make headway on this point. Last week, during cross-examination of Ola Osundairo, a defense attorney asked him about his use of words they say paint him as homophobic.

However, the judge told them to move on to another line of questioning. Defense attorney Tamara Walker then asked for a mistrial, sobbed in court and said the judge had “lunged” at her during a sidebar conversation. The judge denied the accusation and denied the motion for a mistrial, saying he was stunned by the request.

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CNN’s Omar Jimenez and Bill Kirkos reported from Chicago. Steve Almasy reported and wrote from Atlanta and Eric Levenson reported and wrote from New York.

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