Authorities considered the Empire actor's community service and offer to forfeit a $10,000 bond to the City of Chicago in deciding not to prosecute him

By Jeff Truesdell
March 27, 2019 01:23 PM

After the outcry over his decision to drop all charges accusing Empire actor Jussie Smollett of orchestrating a hate crime attack on himself, the lead prosecutor in the case defended his decision but did not absolve Smollett.

I do not believe he is innocent,” First Assistant Cook County State’s Attorney Joseph Magats said in an interview Tuesday afternoon with CBS Chicago.

But Magats reiterated his department’s position — shared with PEOPLE in an earlier statement — that factors including Smollett’s willingness to forfeit a $10,000 bond to the City of Chicago, along with voluntary community service Smollett had performed since he was charged, helped prosecutors decide to abandon their criminal case and forego a trial.

Jussie Smollett, Chicago, USA - 26 Mar 2019
Jussie Smollett outside a Chicago courtroom on March 26
| Credit: Paul Beaty/AP/REX/Shutterstock

“Based on all facts and circumstances of the case, and also keeping in mind resources and keeping in mind that the office’s number one priority is to combat violent crime and the drivers of violence, I decided to offer this disposition in the case,” he said.

In a separate statement to PEOPLE, the state’s attorney’s office affirmed the work that produced the original criminal accusation. “We stand by the Chicago Police Department’s investigation and our approval of charges,” the statement said.

Smollett had faced 16 counts of disorderly conduct for allegedly fabricating details of an assault that occurred around 2 a.m. January 29 on a street in his Chicago neighborhood.

The black and openly gay actor said the two mask-clad men who attacked him hurled racist and homophobic insults, doused him with a chemical, and slipped a rope around his neck, which Smollett still had on him when later interviewed by police.

Chicago Police Superintendent Eddie Johnson later told reporters that two men — Nigerian brothers Abel and Ola Osundairo, who were acquaintances of Smollett — admitted their roles but said they were acting at Smollett’s direction, and police recovered a $3,500 check they portrayed as Smollett’s payment to the two men for the alleged hoax attack. Police said phone records revealed Smollett had spoken with the men an hour before the attack, an hour after the attack, and while they were out of the country as the investigation unfolded.

Abel and Ola Osundairo
| Credit: Instagram

Johnson alleged that Smollett’s motive was to attract attention and sympathy with the goal to boost his salary on Empire, a hit FOX TV show.

The brothers subsequently issued an apology through their lawyer for their involvement in the incident, though they did not specify what they did. Neither has been charged.

Empire Cast Member Attack, Chicago, USA - 21 Feb 2019
Jussie Smollett
| Credit: Chicago Police Department/AP/REX/Shutterstock

“I’ve been truthful and consistent on every single level since day one,” Smollett said in brief remarks to reporters at the Cook County courthouse Tuesday after the charges were dropped. He added, “I would not be my mother’s son if I was capable of doing what I was accused of.”

His attorney, Patricia Brown Holmes, told reporters that Smollett had agreed to voluntarily forfeit the bond he posted after his arrest on the charges, and she cited his record for community service. “There is no ‘deal,’” she said. “The state dismissed the charges.”

She also said Smollett’s $3,500 check to the brothers was to cover Smollett’s nutrition and training regimen. “They were his trainers,” she said.

But within hours after the charges were dropped, the police superintendent and Chicago Mayor Rahm Emanuel stood together to slam the prosecutor’s decision.

“This is an unbelievable whitewash of justice,” the mayor said. “It’s immoral, unethical, wrong.” Citing a grand jury’s indictment of Smollett, Emanuel said he believes the actor perpetrated a hoax. “How dare him,” he said, later adding, “Is there no decency in this man?”

• Want to keep up with the latest crime coverage? Click herethis link opens in a new tab to get breaking crime news, ongoing trial coverage and details of intriguing unsolved cases in the True Crime Newsletter.

Johnson, a Chicago native who is also black, had previously blasted the actor by saying, “Jussie Smollett took advantage of the pain and anger of racism to advance his career.” On Tuesday he said: “Do I think justice was served? No. What do I think justice is? I think this city is still owed an apology.”

Tina Glandian, another of Smollett’s attorneys, said Wednesday on ABC’s Good Morning America that while Smollett did indeed communicate with the brothers that night, he did not recognize them as his attackers when the assault occurred. She said they were working with Smollett to help him train for an upcoming music video. “They were supposed to train that night as well as the next morning,” she said, but Smollett’s flight to Chicago that night had delayed him for several hours.

“He initially had a really hard time believing that they could be involved because he knew one of them,” she said. “We can only speculate as to motivation.”