Jussie Smollett was ordered released from jail Wednesday by an appeals court that agreed with his lawyers that he should released pending the appeal of his conviction for lying to police about a racist and homophobic attack.
A jury convicted Smollett in December on five felony counts of disorderly conduct — the charge filed when a person lies to police. He was acquitted on a sixth count. Judge James Linn sentenced Smollett last week to 150 days in jail, but with good behavior he can be released in as little as 75 days.
That’s because Smollett’s attorneys have asked in a motion to the First District Court of Appeals to suspend the jail sentence and allow Smollett to post bond so that he can be out of custody during the appeal process. And they asked the court to postpone Smollett’s ordered payment of $140,000 in fines and restitution that Cook County Judge James Linn ordered as part of his sentence.
"Rather than attempt to meet his burden of showing good cause for his immediate release, Mr. Smollett makes only cursory, woefully undeveloped arguments," deputy special prosecutor Sean Wieber wrote.In an interview with The Associated Press, David Erickson, a former state appellate judge who teaches at Chicago Kent College of Law, explained what happens next.
It also means the attorneys will receive nothing but a short and pointed notice that the motion has been rejected. There likely won’t be any reason given or a statement of any kind. Two of the three justices must agree to grant the motion. If they do, the attorneys will be notified that the motion has been granted. This time, Erickson said, they will explain their reasoning.
"That’s not a legal argument and the appellate court is limited to looking at legal errors only," he said, adding that while motions such as the ones Smollett’s legal team filed are common, they are not often granted.
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