Jussie Smollett arrested, accused of faking attack

/ CBS/AP

Jussie Smollett faces felony criminal charge

"Empire" actor Jussie Smollett is in custody to face charges of making a false police report when he said he was attacked in downtown Chicago late last month by two men who hurled racist and anti-gay slurs and looped a rope around his neck, police said.

Chicago police announced the development on Twitter:

UPDATE: Chicago Police Detectives take #Empire actor #JussieSmollett into custody to face Class 4 Felony charge (punishable for up to 3yrs in prison) for Disorderly Conduct in Falsifying Police report. Bond Hearing scheduled for 1:30p in Cook County Criminal Court.#ChicagoPolice

— Tom Ahern (@TomAhernCPD) February 21, 2019

Fellow police spokesperson Anthony Guglielmi said prosecutors charged Smollett with felony disorderly conduct, an offense that could bring one to three years in prison and force the actor to pay for the cost of the investigation into his report of a Jan. 29 beating.

The charges emerged on the same day that detectives and two brothers who were earlier deemed suspects testified before a grand jury. Smollett's attorneys met with prosecutors and police, but it was unknown what they discussed or whether Smollett attended the meeting.

In a statement, attorneys Todd Pugh and Victor Henderson said Smollett "enjoys the presumption of innocence, particularly when there has been an investigation like this one where information, both true and false, has been repeatedly leaked."

The announcement of the charges followed a flurry of activity in recent days, including lengthy interviews of the brothers by authorities, a search of their home and their release after police cleared them.

Investigators have not said what the brothers told detectives or what evidence detectives collected. But it became increasingly clear that serious questions had arisen about Smollett's account – something police signaled Friday when they announced a "significant shift in the trajectory" of the probe after the brothers were freed.

Jussie Smollett attending event at Compton High School on October 2, 2017 Getty

Smollett, who plays a gay character on the hit Fox television show, said he was attacked as he was walking home from a Subway sandwich shop. He said the masked men beat him, made derogatory comments and yelled "This is MAGA country" – an apparent reference to President Donald Trump's campaign slogan, "Make America Great Again" – before fleeing.

Earlier Wednesday, Fox Entertainment and 20th Century Fox Television issued a statement saying Smollett "continues to be a consummate professional on set" and that his character is not being written off the show. The series is shot in Chicago and follows a black family as they navigate the ups and downs of the recording industry.

The studio's statement followed reports that Smollett's role was being slashed amid the police investigation.

Whispers about Smollett's potential role in the attack started with reports that he had not fully cooperated with police and word that detectives in a city bristling with surveillance cameras could not find video of the attack.

Detectives did find and release images of two people they said they wanted to question and last week picked up the brothers at O'Hare Airport as they returned from Nigeria. Police questioned the men and searched their apartment.

The brothers, who were identified by their attorney as Abimbola "Abel" and Olabinjo "Ola" Osundairo, were held for nearly 48 hours on suspicion of assaulting Smollett.

The day after they were released, police said the men provided information that had "shifted the trajectory of the investigation," and detectives requested another interview with Smollett.

Police said one of the men had appeared on "Empire," and Smollett's attorneys said one of the men is the actor's personal trainer, whom he hired to help get him physically ready for a music video. The actor released his debut album, "Sum of My Music," last year.

Smollett was charged by prosecutors, not the grand jury. The police spokesman said the brothers appeared before the panel to "lock in their testimony."

Speaking outside the courthouse where the grand jury met, the brothers' attorney said the two men testified for about two and a half hours.

"There was a point where this story needed to be told, and they manned up and they said we're going to correct this," Gloria Schmidt said.

She said her clients did not care about a plea deal or immunity. "You don't need immunity when you have the truth," she said.

She also said her clients received money from Smollett, but she did not elaborate.

Smollett has been active in LBGTQ issues, and initial reports of the assault drew outrage and support for him on social media, including from Sen. Kamala Harris of California and TV talk show host Ellen DeGeneres.

Referring to a published account of the attack, President Donald Trump told reporters at the White House that "it doesn't get worse, as far as I'm concerned."

But several hours after Smollett was declared a suspect and the charges announced, there was little reaction from celebrities online.

Former Cook County prosecutor Andrew Weisberg said judges rarely throw defendants in prison for making false reports, opting instead to place them on probation, particularly if they have no prior criminal record.

Smollett has a record – one that concerns giving false information to police when he was pulled over on suspicion of driving under the influence. According to records, he was also charged with false impersonation and driving without a license. He later pleaded no contest to a reduced charge and took an alcohol education and treatment program.

Another prospective problem is the bill someone might receive after falsely reporting a crime that prompted a nearly monthlong investigation, including the collection and review of hundreds of hours of surveillance video.

The size of the tab is anyone's guess, but given how much time the police have invested, the cost could be huge.

Weisberg recently represented a client who was charged with making a false report after surveillance video discredited her account of being robbed by three men at O'Hare Airport.

For an investigation that took only a single day, his client had to split restitution of $8,400, Weisberg said. In Smollett's case, "I can imagine that this would be easily into the hundreds of thousands of dollars."

Earlier this week, Chicago's top prosecutor, Cook County State's Attorney Kim Foxx, announced that she had recused herself from the investigation.

Her office explained Wednesday that Foxx made the decision "out of an abundance of caution" because of conversations she had with one of Smollett's family members just after the report. When the relative expressed concerns about the case, Foxx "facilitated a connection" between the family member and detectives, according to a statement.

Foxx said the case would be handled to her first assistant, Joseph Magats, a 28-year veteran prosecutor.

First published on February 21, 2019

© 2019 CBS Interactive Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.

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