EXPLAINER: Jussie Smollett’s turn to testify. Will he?

CHICAGO — After two brothers spent hours telling a jury how Jussie Smollett paid them to carry out a fake, anti-gay racist attack on himself in downtown Chicago, the big question when the actor’s trial resumes Monday will be whether or not he’ll tell his side of the story.

Lawyers rarely announce whether or not their clients will take a position before actually calling them to testify, and Smollett’s lawyers have not publicly announced their plans.

The reasons Smollett might want to testify begin with how strange the case is. During the trial that began last Monday, the story emerged of a TV star who arrested two of his brothers as his attackers, gave them dialogue to recite, and paid for the rope he told them to make into a noose and wrapped around his neck.

As strange as this sounds, it is the only narrative shown to the jury from the Abimbola brothers and Olabingo Osundairo. Some legal experts say Smollett’s only chance of overcoming accusations that he lied to police is by telling jurors his account of what happened on January 29, 2019.

Jurors might be thinking, ‘Who does this guy think he’s not standing up to tell his story,’ said Terry Eckel, a prominent Chicago-area defense attorney not involved in the case. “

Eckel and other legal experts said jurors are not supposed to read anything into a defendant’s decision not to testify but that when they return to the deliberation room they often do.

Regarding the importance of the defendant’s testimony, legal experts said one need look no further than the recent trial in Kenosha, Wisconsin, where Kyle Rittenhouse was acquitted of all charges after he testified that he killed two men and injured another because he feared for his life.

“They won the case by putting him in front of him,” said Kathleen Zellner, a Chicago defense attorney. “The jury believed him.”

In Smollett’s case, it may be important for him to testify because, as strange as the two brothers’ testimony was, they are the only witnesses to the accident who testified. Chicago defense attorney Joe Lopez said Smollett’s attorneys “were unable to isolate these brothers,” the Chicago defense attorney said.

Nor did they locate a white person who a woman told police she saw carrying a rope in the area earlier that night, leaving the brothers and Smollett as the only three people a jury can conclude they know what happened.

“I think they just want to hear his story, and if they don’t, the only story they have is the prosecution’s,” said David Erickson, a former state appellate judge who teaches at Chicago Kent College of Law.

Another reason Smollett wants to testify: He must be good at it.

“He is an actor. He must testify,” Lopez said.

“He has the ability to communicate (and) believes he can take the position of witness and play a role,” Eckel said.

When he teaches advocacy during the trial, Erickson said, he’s made it clear from the start that jurors vote for people they like. He said he was now sure they liked Special Prosecutor Dan Webb. “Dan Webb everyone, he seems to be a nice guy, a good neighbor.”

In contrast, they don’t know Smollett, nor have they heard his voice since he introduced himself during jury selection.

But testifying could pose all kinds of problems for Smollett, starting with his need to explain how the brothers knew they were going to bump into him in the dead of a frigid night in an unfamiliar neighborhood upon his return from a sandwich shop. Unless he tells them he will be there.

Also, if indicted, Smollett’s words could get him into more trouble.

He (the judge) cannot be punished for not giving evidence, but if he takes the podium and the judge thinks he is a liar to himself, he can add (jail or jail) some time,” Erickson said.

Both Erickson and Eckel believed that Smollett would end up testifying, even if his attorneys begged him not to.

“I think you have a very arrogant and self-centered guy who really thinks he can make people believe what he’s saying is true… . . .

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Check out AP’s full coverage of the Jussie Smollett case.

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