Turley: Jussie Smollett Could Walk; Testimony Aimed at ‘Jury Nullification’

George Washington University law professor Jonathan Turley wrote Wednesday that disgraced former Empire actor Jussie Smollett could walk out of court a free man, thanks to testimony aimed at persuading the jury to sympathize with him.

Smollett, accused of faking a racist and homophobic attack in January 2019 that he tried to blame on Trump supporters, took the stand in his own defense this week.

Bizarrely, he argued that his original story was true: “There was no hoax,” he claimed, under oath.

But he didn’t bother to argue the facts, Turley noted: rather, he played the victim.

As Turley wrote at The Hill:

Jury nullification is not an act of willful blindness. Rather, it is an act of willful disregard of the evidence. It occurs when jurors acquit regardless of the evidence of guilt. It is not that they don’t see or understand the evidence; they simply choose the individual over the evidence.

Lawyers usually cannot expressly ask jurors to disregard the evidence of a case in contradiction to the judge’s instructions. But they can make the case for nullification in not-so-subtle ways. In Smollett’s case, the defendant talked about his mistrust of the police and openly accused the prosecutor of misrepresenting facts to the jury. In front of the jury, he declared: “I’m a Black man in America and I do not trust police.”

Smollett was curt on cross examination, insisting that the two Nigerian brothers (one of whom he said was once his lover), the Chicago police, the prosecutors and others all sought to frame him. Smollett even chastised prosecutor Dan Webb for reading from Smollett’s Instagram messages, which included the N-word; Smollett told Webb to spell or abbreviate the word so as not to offend “every African American in this room.”

The Smollett defense is a classic plea for nullification, which is why it seems so bizarre to most people weighing the evidence. The trial becomes a struggle over perceptions rather than proof. Even Smollett’s lawyers claimed to be victims in the courtroom. Defense attorney Tamara Walker demanded a mistrial in a sidebar conversation with attorneys from both sides and Cook County Judge James Linn. Walker reportedly broke into tears after accusing the judge of lunging at her in the courtroom and making faces from the bench.

Turley noted that Smollett and his legal team tried to create drama in the courtroom, raising the familiar complaints of the Black Lives Matter movement, accusing the judge and the prosecution of racism and aggression.

If successful, Smollett will likely still struggle to rebuild his acting career, though he has vowed to make “that allow minorities, blacks and gays the opportunity to show their artistry.”

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.


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