Jussie Smollett trial: Star witness says he was told to punch Empire actor, but 'not too hard', in staged hate attack

Actor Jussie Smollett raises his fist while walking through the Leighton Criminal Courthouse lobby on day four of his trial on December 2, 2021, in Chicago. Photo / AP

Jussie Smollett's legal team will seek to dent the credibility of a star state witness who the day before testified about how he said the former Empire actor recruited him and his brother to stage a racist, homophobic attack on Smollett.

But casting doubts on the testimony of Abimbola Osundairo as the defence begins cross-examining the aspiring actor won't be easy. Much of what he told jurors from the stand on Wednesday (Thursday NZT) appears to be corroborated by video and other evidence.

Osundairo testified that Smollett instructed him and his brother in advance on how they should carry out the January 29, 2019, hoax. Smollett also planned a "dry run" and gave him a US$100 bill to buy supplies, Osundairo said.

Osundairo told jurors Smollett instructed him to punch Smollett but "not too hard". Once Smollett was on the ground, Osundairo said Smollett said he should give Smollett "a bruise" and "give him a noogie" — or rub his knuckles hard on Smollett's head.

Osundairo, who worked as a stand-in on Empire, said he and his brother agreed because he felt indebted to Smollett for helping him with his acting career.

Smollett, 39, is charged with six counts of felony disorderly conduct for making what prosecutors say was a false police report — one count for each time he gave a report — to three different officers.

The class 4 felony carries a prison sentence of up to three years, but experts have said if Smollett is convicted he likely would be placed on probation and ordered to perform community service.

Attorney Gloria Schmidt Rodriguez, centre, walks with her clients Abimbola Osundairo, left, and Olabinjo Osundairo, outside the Leighton Criminal Courthouse in Chicago. Photo / AP

Osundairo testified that he and his brother had difficulty identifying a good spot for the staged attack, walking around in the early morning of that January 29 in weather that Osundairo described as "colder than penguin feet".

According to Osundairo, when the brothers spotted Smollett at around 2am, Osundairo — as instructed earlier by Smollett — shouted a homophobic slur and his brother yelled, "this is MAGA country". "MAGA" was an apparent reference to then-President Donald Trump's slogan "Make America Great Again".

After punching Smollett in the face and throwing the actor to the ground, they put a noose around his neck and threw bleach on him, then ran away, Osundairo told jurors.

The next morning, as news broke of a hate crime against Smollett, Osundairo said he texted a note of condolence to Smollett, also as instructed. It read: "Bruh, say it ain't true. I'm praying for speedy recovery."

Osundairo testified that Smollett gave him a cheque for US$3500 and wrote on it that it was for a nutrition and workout programme. But Osundairo said the money was both for the programme and for helping to stage the attack.

A defence attorney told jurors during openings that Smollett was a "real victim" and that the brothers' accounts are unreliable.

Before January 29, 2019, Osundairo said Smollett sent him a text message asking to meet up "on the low", which he took to mean a private meeting about something secret. Osundairo said it was at that meeting that Smollett first asked him "to fake beat him up" and asked if his brother could help. Osundairo said he was "confused" and "puzzled" by the request.

Smollett said a camera in the area would record the attack, and that he wanted to use the recording for media purposes, Osundairo testified.

Also Wednesday, Chicago police detective Kimberly Murray, who interviewed Smollett the morning of the attack, said he told her he had received a threatening phone call days earlier, but he refused to hand over his cellphone, which the detective said could help police piece together a timeline. She said Smollett also wouldn't consent to giving medical records or a DNA swab.

Murray also said Smollett told her he had been assaulted by two men — one white and wearing a ski mask, the other he couldn't see — as he was returning home after buying a sandwich.

A Chicago police officer testified on Tuesday that investigators tracked down the Osundairo brothers, who are Black, using surveillance video and taxi and ride-share records. When taken into custody, the siblings detailed to police how Smollett orchestrated the fake attack.

A detective who interviewed Smollett after the brothers had been arrested said Smollett then started to change his story. Smollett told detective Robert Graves that the attacker had "pale skin", when he previously said the attacker was white.

Graves also told Smollett that the brothers were in custody for the hate crime.

"He said, 'It can't be them, they're Black as sin'," Graves recounted, saying he took that to mean the brothers' skin is very dark.

Graves testified that during the February 14 interview, Smollett said he would sign a complaint against the brothers, though his attorney stopped him. About 90 minutes later, Smollett sent one of the brothers a text message, Graves said.

"I know 1000 per cent you and your brother did nothing wrong and never would," the text read.

Graves said he concluded Smollett had lied to him.

Defence attorney Nenye Uche has said the brothers attacked Smollett, who is Black and gay, "because of who he is" and has suggested that the brothers were homophobic.