Jussie Smollett's double jeopardy claim tossed out by judge

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Jussie Smollett indicted on new charges related to alleged staged hate crime attack

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Jussie Smollett took another hit in court on Friday when a judge shot down the actor's attempt to have the criminal charges against him dropped, telling Smollett that the new charges against him do not violate his right against double jeopardy, being charged twice for the same crime.

Smollett's attorneys made the double jeopardy argument in February after a special prosecutor secured a six-count indictment on charges alleging that Smollett, 37, lied to police about a racist and homophobic attack that police claim he staged himself.

The new case came months after the county's state's attorney's office abruptly announced it was dropping its initial charges against the former "Empire" star, angering police officials and then-Mayor Rahm Emanuel.

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Cook County Judge James Linn explained that the only way double jeopardy would apply is if Smollett was legally punished for what had happened to him since he was charged in connection with the January 2019 incident.

However, Linn determined that the deal, in which the state's attorney's office agreed to drop charges without requiring Smollett to admit any wrongdoing and Smollett agreed to forfeit his $10,000 bond, did not add up to legal punishment.

FILE - In this Feb. 24, 2020 file photo, former 'Empire' actor Jussie Smollett leaves the Leighton Criminal Courthouse in Chicago. (AP Photo/Matt Marton, File)

“There was no trial in this case, there was no jury empaneled, no witnesses were sworn, no evidence was heard, no guilty pleas were ever entered ... nothing like that ever happened,” Linn said of the 2019 case. “There was no adjudication of this case.”

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Last year, Smollett, who is black and openly gay, told police that two masked men attacked him as he was walking home in the early hours of Jan. 29, 2019. He said they made racist and homophobic insults, beat him and looped a noose around his neck before fleeing, and that at least one of his attackers was a white man who told him he was in “MAGA country,” a reference to President Trump’s campaign slogan, “Make America Great Again.”

Weeks later, police alleged Smollett paid two friends to help stage the attack because he was unhappy with his salary as an actor on “Empire," a Fox series filmed in Chicago that follows a family as they navigate the ups and downs of the recording industry.

Smollett was then charged with making a false report, but the charges would be subsequently dropped with little explanation from prosecutors. Months after the stunning announcement, a judge appointed Dan Webb, a former U.S. attorney, to look into why those original charges were dropped.

Then, in February, Smollett was indicted again. He pleaded not guilty to the renewed charges brought against him and offered a rare public statement at the time, in which he maintains his innocence.

FILE - In this May 20, 2016 file photo, actor and singer Jussie Smollett attends the 'Empire' FYC Event in Los Angeles, Calif.  (Richard Shotwell/Invision/AP, File)

When asked whether he still claims to be innocent, Smollett told TMZ: "I don't claim to be innocent. I am innocent."

Meanwhile, Smollett's attorney Tina Glandian was asked whether she thought the claim of double jeopardy would hold up. "I do [think that can hold up in court]," she said in the February interview. "That's why we filed the motion."

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It was not immediately clear when Smollett might stand trial. At the same time, Smollett is battling a lawsuit filed by the city seeking more than $130,000 for overtime paid to officers who were involved in investigating his report.

An attorney for Smollett did not immediately respond to Fox News' request for comment.

Fox News' Nate Day and The Associated Press contributed to this report