A top defense lawyer for Jussie Smollett will be allowed to stay on the actor’s defense team but cannot cross-examine two key witnesses against him, a Cook County judge has ruled.
In a written order, Judge James Linn said the evidence “clearly and convincingly” shows that attorney Nenye Uche had spoken with those witnesses about the case in its early stages, an allegation that Uche has strenuously denied.
But ultimately, Linn said, Smollett’s right to the lawyer of his choice outweighs prosecutors’ concerns about a conflict of interest, especially given that Smollett has waived any conflict — and in the end, it’s his own freedom on the line.
Attorney Nenye Uche will be allowed to remain on Jussie Smollett's defense team. (Terrence Antonio James / Chicago Tribune)
The ruling puts Uche in an unusual position: A lead defense attorney unable to cross-examine two of the prosecution’s main witnesses. One of Smollett’s other attorneys will have to take that role.
Uche could not immediately be reached for comment Friday.
Smollett earlier this year selected Uche, a former Cook County prosecutor, to take a key role in his defense against charges that he staged a phony hate crime on himself and lied to police about it.
Not long afterward, brothers Olabinjo and Abimbola Osundairo — who told police they helped Smollett orchestrate the hoax — came forward to say they had spoken to Uche about the case during its initial phases in early 2019.
Special prosecutors wanted Uche thrown off the case, arguing he had a fatal conflict of interest. Uche, on the other hand, denied ever having spoken to the brothers at all. Linn heard testimony from the Osundairos in a closed-door hearing earlier this month.
In his written order, Linn found specifically that the brothers and their mother did speak to Uche more than once about key moments in the case. They discussed immunity; the $3,500 check that police have alleged was payment from Smollett for the hoax; the search warrant on the Osundairos’ apartment; and laws regarding hate crimes, Linn found.
While the brothers did not pay Uche or sign any agreements about legal representation, those conversations were enough to establish an attorney-client relationship, Linn said.
But in the end, Linn said, he “is mindful that the only person whose liberty is at stake in the matter is the defendant Mr. Smollett.”
“An obvious question that gives pause in this matter, how out of all the lawyers in America, including countless extremely competent criminal defense lawyers in Chicago that Mr. Smollett might have chosen he identified Attorney Uche over everyone else is acknowledged but will not otherwise be addressed,” Linn wrote.
Smollett’s next video-conferenced court date is slated for Monday.
Smollett found himself at the center of an international firestorm in early 2019 after he allegedly orchestrated the phony hate crime on himself with the help of the brothers. Cook County prosecutors initially charged him with disorderly conduct, then abruptly dropped the case outright about a month later, with little explanation.
After much public outcry and confusion, a judge appointed veteran attorney Dan Webb as special prosecutor to investigate the Smollett matter. Webb and his team subsequently convened the special grand jury that brought up Smollett on his new case last year.
mcrepeau@chicagotribune.com
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