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A look at why brothers in alleged hoax appear off the hook

February 22, 2019
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"Empire" actor Jussie Smollett leaves Cook County jail following his release, Thursday, Feb. 21, 2019, in Chicago. Smollett was charged with disorderly conduct and filling a false police report when he said he was attacked in downtown Chicago by two men who hurled racist and anti-gay slurs and looped a rope around his neck, a police said. (AP Photo/Kamil Krzaczynski)

CHICAGO (AP) — Two brothers who played central roles in what Chicago police say was a staged racist and homophobic attack on Jussie Smollett are, compared to the “Empire” actor, so far walking away legally unscathed.

Police outlined their case against the 36-year-old actor at a news conference Thursday, saying he paid the brothers $3,500 to help stage a bigoted attack against him early on Jan. 29 in downtown Chicago. Police say Smollett sought to drum up publicity for himself and was unhappy about his salary.

Smollett is charged with felony disorderly conduct for allegedly choreographing the hoax and filing a false report. A conviction carries a maximum three-year prison term. A Cook County judge admonished Smollett in bond court Thursday and set bond at $100,000.

As for 25-year-old Abimbola “Abel” and 27-year-old Olabinjo “Ola” Osundairo, the city’s police chief said they aren’t considered suspects and he gave no indication any charges against them are pending.

Here’s a look at why they may be off the hook:

Q: DIDN’T THE BROTHERS COMMIT A CRIME DURING THE ALLEGEDLY STAGED ATTACK?

A: Not necessarily. However odd it might be, it wouldn’t be breaking the law to agree to pretend to beat someone up. If that was as far it went, there would be no victims. It becomes a crime if one of the participants reports the fake beating to police as real. Authorities say that’s what Smollett did. The victims would include police, who wasted their time investigating the phony attack.

Actor Smollett allegedly lied about hate crime
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Smollett, who is black and gay, had reported that two masked men beat him, used racist and homophobic slurs, doused him in a chemical substance and draped a noose around his neck before fleeing. He also said they yelled “This is MAGA country” — an apparent reference to President Donald Trump’s campaign slogan, “Make America Great Again.”

The American-born brothers of Nigerian descent are bodybuilders and have both done some acting. A Thursday court filing by prosecutors said Abimbola Osundairo was a close friend of Smollett’s.

The filing also said text messages “revealed Abel was a source of designer drugs” for Smollett. It mentions ecstasy. Smollet’s attorney, Mark Geragos, declined comment on that issue. A message left for Abimbola Osundairo’s lawyer Thursday evening was not returned.

Q: COULD ANYTHING THE BROTHERS DID BEFORE OR AFTER THE ATTACK BE A CRIME?

A: Possibly, said Gal Pissetzky, a Chicago-based defense attorney.

If the brothers knew in advance that Smollett planned to call police to pass off the hoax as real and knew the aim was to pressure Smollett’s employers for a higher salary, Pissetzky said that could open them up to a charge of conspiracy.

But prosecutors may see such a charge as overkill for an incident that didn’t result in major damages or injuries, even if it generated negative publicity for Chicago. Police say scratches on Smollett’s face were likely self-inflicted.

“I don’t think they are going to bother spending resources on charging them,” Pissetzky said of the brothers. “They would rather get the big fish, Smollett.”

Q: IS THE BROTHERS’ COOPERATION A FACTOR IN THEM NOT FACING CHARGES?

A: Authorities haven’t said if they promised the brothers they would not be charged if they cooperated. However, police Superintendent Eddie Johnson said Thursday much of the evidence that made it possible to charge Smollett came from interviews with the brothers. That cooperation is almost certainly a main reason they haven’t been charged.

It’s also possible police broached allegations about Abimbola Osundairo being a source of designer drugs to apply additional pressure.

The brothers’ lawyer, Gloria Schmidt, told reporters earlier Thursday that her clients weren’t motivated by promises about anything.

“There was a point where this story needed to be told, and they manned up,” Schmidt said. “Plea deal, immunity, all of that — they don’t care about that.”

As she suggests, they didn’t open up to police right away.

According to Johnson, the brothers left for Nigeria shortly after the staged attack and were detained Feb. 13 upon arriving back in Chicago. It was only after more than 45 hours behind bars that they agreed to talk, later admitting they helped stage the attack and offering details on how it was done.

Johnson said that if the brothers had held out and refused to speak for another few hours, reaching their 48th hour in custody, police would have had to release them and authorities might still not have reached the stage of charging anyone.

Q: WHAT ABOUT THEIR GRAND JURY TESTIMONY?

A: Police said the brothers were taken before a grand jury Wednesday just hours before the charge against Smollett was announced so their testimony could be “locked in.” That refers to the practice of taking witnesses — especially reluctant ones — before a grand jury to get them to say everything they know under oath before they can even think about changing their minds.

Bringing the Osundairo brothers before the grand jury accomplished at least two things for prosecutors, explained Pissetzky.

First, it gives them the option of charging or threatening to charge the brothers with lying to a grand jury if it ever looks like they might try to recant their statements about Smollett. Secondly, if they do recant, say, at a future Smollett trial, prosecutors could be permitted to read their grand jury testimony to trial jurors to discredit the contradictory testimony.

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Follow Michael Tarm on Twitter at http://twitter.com/mtarm