How Jussie Smollett’s false attack case could go from ‘no confidence’ to ‘alleged lie’

It could get even more difficult for Jussie Smollett to convince jurors his account of what happened in a Chicago apartment two years ago is true.

Smollett called 911 to report a hate crime in the early hours of Jan. 29, 2016.

Police responded and met Smollett outside the apartment building where he was living at the time. They looked through the apartment’s surveillance cameras.

Investigators found little evidence that anyone had been in the apartment, but they were able to recover the recording of Smollett’s 911 call.

According to prosecutors, there’s a discrepancy in how the recording sounds. The Tribune reported that Smollett was heard telling police officers the timing of the call didn’t match up with what was recorded on the audio system. Smollett told police the recording should play out as he spoke to them, but he apparently played the recording for police again after attorneys met with detectives and set parameters for their investigation.

Smollett’s attorneys, Gloria Schmidt and Tina Glandian, have declined to comment about the discrepancy and their client’s whereabouts that night.

The mistake prompted Smollett to be charged in misdemeanor disorderly conduct, a state law that does not require proof of wrongdoing to hold someone accountable for making a false police report. Smollett, who has pleaded not guilty to the charges, and his lawyers have maintained his account of the incident is accurate.

With Chicago likely to play a key role in Smollett’s case, it’s up to the prosecution to show Smollett lied when he reported he was attacked by two men wearing masks who yelled racial and homophobic slurs. Prosecutors and defense attorneys have complained that Chicago’s citywide law already can be a burden on an “innocent” defendant.

If the government can show the timeline of the emergency call is inconsistent with what Smollett told police officers, and if it can also show he violated the “false report” law, that could put him in a difficult spot.

“If they think [Smollett] lied to police, I think that is very significant,” said James Fulkerson, who was in the Cook County state’s attorney’s office in 2002 when it prosecuted felon Damien Jensen, who made a false report of a gas-station robbery.

Jensen had burglarized and smashed his friend’s car windows. Police pulled Jensen over on the road in his friend’s car, and found the gas can the two had stolen from the victim. But it wasn’t their actual gas can, according to court records.

Jensen pleaded guilty to the charges and was sentenced to 10 years in prison for fabricating evidence.

If investigators can determine that Smollett made the false report knowing it was not true, “I would view that as a significant problem for Jussie,” Fulkerson said.

“If he makes a fake report, if he makes the impression that he lied in an effort to get publicity, that doesn’t necessarily kill your case, but it creates problems for your case.”

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