In New Filing, Smollett's Attorneys Say Police Choice To Hold Costly Investigation Was Not His Fault
CHICAGO (CBS) -- In a court filing Wednesday, attorneys for Jussie Smollett reiterated their claims of his innocence -- but claimed that if he had made false statements about being the victim of a hate crime, there was no way he could have known or controlled how extensively police would investigate or how much it would cost.
The city has filed a civil lawsuit asking Smollett for $130,000 to cover the costs investigating what they call a staged racist and homophobic attack.
Smollett wants the lawsuit dismissed, and in a reply in support of his motion to dismiss filed Wednesday in U.S. District Court, his attorneys reiterated their stance that their client was telling the truth all along about being attacked.
"Mr. Smollett has always maintained and continues to maintain his innocence," the filing said. "Yet the City's claims and purported damages are a vindictive effort to prosecute charges that the State's Attorney pursued and then chose to drop."
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But the filing went on to suggest that the issue was almost beside the point when it came to Smollett's culpability for the costs of investigating his claims. The filing said the city "fails to identify any allegations that would plausibly show that Mr. Smollett, as opposed to the officials at the CPD or the State's Attorney's office, caused the City to incur the alleged costs."
"The filing of a police report, in and of itself, does not necessitate a sprawling investigation nor does it, as a practical matter, usually result in an investigation as extensive as the one the CPD chose to undertake in this case; rather, the filing of a police report enables the police and prosecutors to decide whether and how to investigate," the filing said.
Smollett's attorneys argued that police made a choice to conduct a costly investigation that involved 1,836 CPD overtime hours, and that Smollett's filing a police report did not force them to do so.
"(T)he Complaint does not suggest or allege that the CPD investigation was an ordinary and reasonable consequence of Mr. Smollett's allegedly false statements. The Opposition attempts to remedy this omission by asserting that "the entire purpose of reporting a crime is to enable the police to investigate," the filing said. "But this supposition betrays the reality of the situation—a police report alone does not cause a CPD investigation nor does it cause the City to incur other costs."
Smollett's attorneys also claimed that unlike a case the city cited in which a defendant paid bribes to health care providers knowing they would file false claims with the government, the city has failed to establish that Smollett would have any idea "that his statements to police would result in 1,836 hours of police overtime, or any other reasons why he should have known this would have been the case."
The filing said there was nothing foreseeable about the number of hours of overtime police spent, and the consequent cost, from the "alleged false statements that preceded the investigation."
Smollett's attorneys went on to claim that the city had not made clear "where and to whom the alleged false statements were made," and that the city had been so ambiguous on the that it is "impossible to ascertain how many false statements it contends Mr. Smollett has made, which prevents Mr. Smollett from understanding and effectively responding and preparing a defense."
To support this claim, Smollett's attorneys took issue with the city's complaint against their client only referencing his statements to "CPD officers," rather than distinguishing between responding and investigating officers.
"The Complaint alleges that Mr. Smollett made one false statement to CPD officers that he was the victim of an attack. The Opposition suggests that the Complaint actually alleges at least two such false statements, first to responding officers and then to subsequent investigating officers," the filing said. "Which is it?"
Just last week, Smollett's team claimed there was police evidence to support their client's innocence – a claim that was not addressed in the Wednesday filing.
Smollett's team said in a statement released to the Associated Press on Wednesday of last week that "every iota" of his account of being the victim of an attack is supported by police evidence. The statement did not specify what that evidence was.
RELATED: Catch Up On CBS 2's Coverage Of The Smollett Case
In recent months, Chicago Police have released hours upon hours of surveillance video and documents in the Smollett investigation.
It included everything from body camera video showing a rope wrapped around Smollett's neck the night of the reported attack, to the brothers who say they were paid to carry out the attack caught on security camera buying supplies for alleged hoax.
Smollett said he was attacked by two men, who doused him with a chemical and put a noose around his neck at 2 a.m. Jan. 29. He claimed the men shouted racial and homophobic slurs in the attack on Lower North Water Street, and also said, "This is MAGA country" in an apparent reference to President Donald Trump's "Make America Great Again" slogan.
Police said, in reality, Smollett had paid two men, Ola and Abel Osundairo, $3,500 by check to stage the attack. CBS 2's De Mar has reported Smollett also allegedly directed the brothers to buy the noose at a hardware store and the hat and masks at a store in Uptown. Johnson said police have the check.
The brothers' attorneys have acknowledged they took part in a hoax, but said they have apologized for it and only did so because Smollett paid them.
Police have said Smollett -- who is black and openly gay -- orchestrated the fake hate crime because he was upset with his salary on "Empire."
RELATED: Judge Names Former U.S. Attorney Dan Webb As Special Prosecutor In Jussie Smollett Case | Osundairo Brothers Sue Jussie Smollett's Attorneys, Mark Geragos And Tina Glandian, For Defamation | Kim Foxx's Office Says Her Life Has Been Threatened In Wake Of Jussie Smollett Case Being Dropped
Disorderly conduct charges against Smollett were suddenly dropped by Cook County State's Attorney Kim Foxx's office. But now, former U.S. Attorney Dan Webb has been appointed as a special prosecutor to take a closer look at the case.
RELATED: More Than 2,000 Pages Released In Jussie Smollett Case File, Making All Documents Public | Jussie Smollett 911 Calls On Night Of Alleged Attack: 'They Put Noose Around His Neck … That's Really F—ed Up'
Foxx's handling of the case will be investigated, and Smollett could now face new criminal charges. Since he was never convicted or acquitted, but rather just had charges against him dropped, new charges against Smollett would not constitute double jeopardy.
