[Whitfield:] Welcome back. "Empire" actor, Jussie Smollett, is facing 16 felony accounts and scheduled to be arraigned on Thursday. Back in January, Smollett told police he was attacked by two men in Chicago, but those men say Smollett paid them to stage the attack. Smollett maintains his innocence. So why is he facing 16 counts? Here's CNN Nick Watt.
[Nick Watt, Cnn Correspondent:] Sixteen counts against Jussie Smollett. Basically, every crime he claimed he was a victim of is now a count against him. And you double it because prosecutors say that Jussie Smollett told the story twice, first to a police officer and then later to a detective, roughly the same story. He also went on "Good Morning, America" and told the story as he saw it. He believed it. He wanted it to be heard. What Jussie Smollett told police is that he was attacked by two men, one of them white, who threw a noose around his neck, threw a chemical over him, shouted racist and homophobic epithets at him. Two people were arrested and those two people, who turned out to be African- American men, they told police and they told a grand jury that, in fact, Jussie Smollett had hired them to carry out this attack and cut them a check for $3500, that, in fact, they knew Jussie Smollett. Now, the superintendent of Chicago police, he says that he thinks the reason Jussie Smollett did this is he wasn't getting paid enough money to appear on the "Empire" TV show. He has since been written out of that show for the final two episodes of the current season. Now, even if he is convicted of all 16 counts, the sentencing guidelines are still just for the one crime, a class four felony. So that would be two and a half years in jail or up to three years of probation. Now, Jussie Smollett maintains his innocence and we've heard from his lawyers who call this prosecutorial overkill and they say it's a redundant and vindictive indictment and they Jussie adamantly maintains his innocence. Nick Watt, CNN, Los Angeles.
[Whitfield:] Our legal guys are here, civil rights attorney, Avery Friedman, and criminal defense attorney, Richard Herman. Good to see you both.
[Avery Friedman, Civil Rights Attorney & Law Professor:] Hi, Fredricka.
[Richard Herman, Criminal Defense Attorney:] Hey, Fred.
[Whitfield:] We're talking about two sets of charges here, all felonies, equaling to 16 counts for his alleged lies told to police. Smollett's attorney is calling this overkill. Richard, is it?
[Herman:] Overkill, Fred, that's like they're taking a page out of Trump's playbook of deflection and misdirection. That doesn't speak to the core crimes committed here. Whether it's overkill or not, a crime was staged by Smollett. He staged it. It was fake. And he played with the wrong police department. The Chicago police are under such scrutiny these days for the crimes that are committed there on a weekly basis, and to vehemently deny look, everyone's entitled to a presumption of innocence. But having said that, you have to look objectively at the facts that we see. And when these two brothers one is Smollett's personal trainer, the other one is on the set of "empire." And they claim he gave them a check for $3500 and they produced the check, and he told them what hardware store to buy the noose, the whole thing is preposterous. If he had a real attorney, Smollett, immediately they would have walked him into a shrink or to some sort of psychiatric institution
[Friedman:] You don't know. Wait, you don't know
[Herman:] and that would have saved him. Because he vehemently denied it and went on TV and he looked like an idiot on TV, now he pissed off the police department. And 16 counts, he's going to end up pleading
[Whitfield:] The counts really are disorderly conduct for filing a false police report. A charge for each alleged lie. But as you just said, participating in any alleged staging of it. You made reference to that interview on ABC and this is a portion of it with Robin Roberts. Let's watch.
[Robin Roberts, Abc Correspondent:] If the attackers are never found, how will you be able to heal?
[Jussie Smollett, Actor:] I don't know. Let's just hope that they are. You know what I'm saying? Like, let's not go there yet. Let's I was talking to a friend and I said, I just want them to find them. And she said, Sweetie, they're not going to find them.
[Whitfield:] So, Avery, it may have been convincing at the time, but then after the police came out with its litany of evidence, the videotape, surveillance tape, the relationship with the two young men, the deleted texts, et cetera, I mean, we know he has been maintaining his innocence, but what now? How far does he and his team go in its defense?
[Friedman:] Well, I think, first of all, we now know what a great actor Jussie is. I thought he did a great job on
[Abc. Herman:] He's not a good actor.
[Friedman:] I thought the guy was great.
[Herman:] No.
[Friedman:] But the fact is that this was clever by half. And the idea of ascribing a motive for a false police report that he wanted to get more money from "Empire" he gets about $65,000 an episode anyhow, so he's doing just fine. I actually don't think it's overstatement by prosecutors. I think, for those of us that are involved in hate crimes, protecting victims, based on race or where people are from or orientation, this is really serious. He has exploited the divide in America. And that's why I think, Fredricka, this is very serious stuff. Ultimately, he's going to be facing two to three years. He's going to get clink time. I actually believe that. I think there's going to be an extended probation. But at the end of the day, I actually ascribe what he did to a distorted view based on a guy that is well to do, he doesn't know what it's like to suffer, he's exploited political, hate and orientation problems in America, and I think he's going to ultimately be accountable for it.
[Whitfield:] Richard, do you think he's going to do jail time? Do you think it's too late for attorneys for his defense to say, OK, he needs help and he's now admitting to I mean, where do you see the potential end game for Jussie Smollett?
[Herman:] I think that has to happen, Fred. I think if it happened, again, like I said initially, this would not have spiraled to 16 counts. I think the fact that he went on TV and said, I feel betrayed by the system and all this
[Friedman:] That's right. That's right.
[Herman:] I mean, he antagonized the government and the Chicago police.
[Friedman:] And he hurt a lot of innocent people, too. Look, he hurt a lot of innocent
[Whitfield:] Police resources.
[Herman:] The grand jury voted this in so it's a legitimate indictment. These are felony counts, Fred. There's 16 of them. Ultimately, he's going to end up pleading to one felony count. He's going to get probation here but he'll have a criminal history. And what also is looming out there
[Friedman:] So what? He's in Hollywood. It doesn't matter.
[Herman:] I'm trying to talk. What else is looming, Fred, is, a week before this took place, he says he received a letter on the set of "Empire," which contained white powder, which also was a hoax. It's being evaluated by the FBI crime lab right now. But if he's the one who sent that letter, Fred, he could be facing federal charges now.
[Friedman:] It's not going to happen.
[Herman:] This is not over. It's not over.
[Whitfield:] So, Avery, you were in you were in
[Herman:] You don't know it's not going to happen
[Whitfield:] You think he is going to do jail time, Avery?
[Herman:] Of course, he's going to jail.
[Friedman:] I think this is going to focus in on the false police report. I'm not buying the other part of this thing. At the end of the day though, it is a serious crime. There are a lot of innocent people who suffer violence because of who they are, where they're from, and a lesson needs to be taught here. I think the prosecutors in Cook County are going to seek the maximum, which, again, is two to three years. I think he's doing jail time. I think he's going to be on probation. And I think there's going to be a remedy that the judge is going to require to try to counter balance what he's done here
[Herman:] Yes, psychological, it's psychological.
[Friedman:] because America is not going to forget this. It's not going to evaporate.
[Whitfield:] All right, Richard Herman, Avery Friedman, always tell like it is. Thanks to both of you. Appreciate it. I love your candor. Thank you. We'll be right back.