A day after claiming they would no longer cooperate with Jussie Smollett’s prosecution, the case’s key witnesses — a pair of bodybuilding brothers who told police they helped the actor stage a hoax hate crime on himself last year — reversed course, saying they would now continue voluntarily working with authorities.
The new developments in the strange Smollett saga stem from a dispute over property police seized in a raid at the brothers’ home in the early stages of the investigation, when Abimbola and Olabinjo Osundairo were treated as suspects rather than witnesses.
The brothers’ attorney asked for the return of those belongings, including several firearms, ammunition and magazines, but the process became “a paperwork nightmare,” according to a letter from their attorney, Gloria Schmidt Rodriguez, addressed to a Chicago Police Department lawyer.
“I hope this effort from your office and your clients was worth it because my clients are advising that whether they receive their items or not, they will no longer be cooperating with the prosecution of Mr. Smollett,” Schmidt Rodriguez wrote in the letter, dated Wednesday and obtained by the Tribune.
But by Thursday, a 9 mm handgun that had been missing from a previous inventory inspection had been located, and so the brothers would continue their voluntary cooperation, according to a news release from Schmidt Rodriguez’s office.
Attorneys are scheduled for a hearing before Cook County Judge James Linn on Friday, which could determine what items, if any, will be returned to the brothers from police inventory.
Special prosecutor Dan Webb’s office did not return a request for comment Thursday.
The brothers are top witnesses in the case against Smollett. Their statement to police turned the onetime “Empire” actor from victim to suspect, launching a high-profile case that has seen roller-coaster twists since Smollett was first charged last year.
But even if the Osundairos had stood firm in their opposition to voluntarily testifying — or if they waver again — it might not be a death blow to Smollett’s case. Prosecutors could still have issued subpoenas that would have compelled the brothers to appear in court or face legal consequences. Judges at the Leighton Criminal Court Building have even been known, in extreme circumstances, to keep witnesses in custody to ensure their presence at trial.
“If I’m a lawyer and I say, ‘my guy’s not cooperating,’ what that means is, if you want to talk to them you’ve got to subpoena them,” said K.S. Galhotra, a longtime Cook County public defender now in private practice. “… They’ll walk into the courtroom and testify on the witness stand, but (prosecutors) don’t get to spend six hours in the office going over the prior statements and preparing them for testimony.”
And Cook County is no stranger to recalcitrant witnesses. It is not uncommon for key witnesses who initially cooperated with police to take the stand at trial years later and deny their previous statements or claim they do not remember making them.
When that happens, prosecutors can introduce as evidence a witness’s previous sworn statements — for example, grand jury testimony.
But while the Osundairos gave sworn testimony before a grand jury in February 2019, that indictment was abruptly dropped the next month, complicating the situation. And they never went before a grand jury on Smollett’s new charges, Schmidt Rodriguez told the Tribune.
That doesn’t necessarily preclude the previous grand jury statements from being introduced to a jury in the new case, Galhotra said.
But even if their previous grand jury transcripts couldn’t be used, the brothers’ statements to police were recorded on video, according to police records. That video also could be played for jurors if the brothers declined to play ball on the witness stand.
But now that the brothers’ handgun has been located, Schmidt Rodriguez said, they intend to remain cooperative.
“Abel and Ola Osundairo continue to stand 100 percent by their earlier statements and testimony about their involvement in the staged attack,” her statement Thursday afternoon read.
The temporarily missing handgun was not the only concern sources raised with the way Chicago police have handled evidence in the high-profile matter.
For example, the sweatshirt Smollett wore the night of the alleged attack was apparently checked out of the evidence holding area in April 2019 — after Smollett’s first case was dropped — by someone who signed their name as “Sig Nature,” sources familiar with case said.
A special Cook County grand jury indicted Smollett in February on six counts of disorderly conduct alleging he orchestrated a racist and homophobic attack on himself in downtown Chicago in January 2019.
The allegations were similar to charges brought by State’s Attorney Kim Foxx’s office last year. Foxx had recused herself from overseeing the prosecution, revealing she’d had contact with a member of Smollett’s family early in the investigation at the request of Tina Tchen, Michelle Obama’s former chief of staff.
But in appointing attorney Webb as special prosecutor last year, Cook County Judge Michael Toomin wrote that Foxx botched the recusal by handing the reins to her top deputy. Because the recusal was invalid, the entire process played out without a real prosecutor at the helm, he wrote.
![A Cook County judge issued an arrest warrant for an Aurora man in connection with the killing of Chicago police Officer Luis Huesca, according to court records. Xavier Tate Jr. was named in a first-degree murder warrant that ordered authorities to detain him, according to documents filed in Cook County Circuit Court Friday. A felony complaint accuses him of firing a .40 caliber handgun at Huesca, killing him. Huesca, 30 and a six-year veteran of the Chicago Police Department, was in Gage Park when he was shot multiple times on the 3100 block of West 56th Street while off-duty but […]](https://www.chicagotribune.com/wp-content/uploads/2024/04/CTC-L-CPD-luis-huesca-01_187858445_de8a4b.jpg?w=620 "A Cook County judge issued an arrest warrant for an Aurora man in connection with the killing of Chicago police Officer Luis Huesca, according to court records. Xavier Tate Jr. was named in a first-degree murder warrant that ordered authorities to detain him, according to documents filed in Cook County Circuit Court Friday. A felony complaint accuses him of firing a .40 caliber handgun at Huesca, killing him. Huesca, 30 and a six-year veteran of the Chicago Police Department, was in Gage Park when he was shot multiple times on the 3100 block of West 56th Street while off-duty but […]")
