The appellate court ruled that he be released on bond pending his appeal of a judge’s sentence that he serve five months in jail.
An Illinois appellate court ruled Wednesday that the actor Jussie Smollett be released from jail on bond pending his appeal of his conviction for falsely reporting that he had been the victim of a hate crime.
Mr. Smollett was sentenced last week to five months in jail, but his lawyers quickly asked a panel of judges to stay the sentence while they appealed the conviction.
Mr. Smollett’s lawyers had argued in court papers that the sentence should be stayed because his term would likely be finished before his appeal was completed and that being incarcerated threatened his health and safety.
On Wednesday night, Mr. Smollett walked out of Cook County Jail with supporters at his side.
Nenye Uche, Mr. Smollett’s lead lawyer, said in a video posted to his client’s Instagram account, “They released him and that says a lot about what the appellate court thinks of this case.”
In the six days since Mr. Smollett was taken into custody, his family has been pleading for him to be freed and urging the public to call the county to seek his release.
“It’s absolutely ridiculous that he’s in there,” said Jocqui Smollett, one of Mr. Smollett’s brothers, in an Instagram video. “You should be terrified of the precedent this sets.”
Prosecutors, who had argued at sentencing that Mr. Smollett’s offense warranted incarceration, wrote in court papers that by the defense’s logic, every short term of imprisonment would be stayed pending appeal.
“That simply is not, and cannot be, the rule,” wrote Sean Wieber, one of the prosecutors.
Two out of three of the justices on the appellate panel agreed that Mr. Smollett should be released from custody after he posts a $150,000 recognizance bond, agreeing with the defense’s argument about the short sentence and acknowledging that Mr. Smollett’s offense was nonviolent. One justice dissented.
Mr. Smollett’s incarceration on Thursday started with his announcement in the courtroom as he was led to jail that he was not suicidal and that if anything happened to him, it would not have been by his own hand, a statement that appeared to put the authorities on notice. He also repeatedly declared his innocence.
Judge James B. Linn granted his lawyers’ request for protective custody, and according to the Cook County Sheriff’s Office, Mr. Smollett was being kept in a private cell in the Cook County Jail with security cameras and an officer stationed at the entrance.
His family had been arguing on social media that he was the target of “vicious threats” on social media and was at risk. They expressed concerns about his treatment in the jail. Jocqui Smollett said on Tuesday that his brother had been sleeping in a “restraint bed” but had recently been moved to a cell that “actually has a bed.”
Mr. Smollett’s appeal is based, in part, on the idea that the actor’s recent sentence violated the legal concept of double jeopardy because he had already surrendered a $10,000 bond and performed some community service in 2019. Prosecutors have argued that those measures were voluntary and not a punishment.
The case drew national attention, and Mr. Smollett was initially widely viewed as the victim who had been beaten and targeted with racial and homophobic slurs. Then the police began to question his version of events.
At the trial, prosecutors told the jury that Mr. Smollett had instructed two brothers, Abimbola Osundairo and Olabinjo Osundairo, to attack him near his apartment in Chicago, where they placed a rope around his neck like a noose and yelled, “This is MAGA country.”
Both brothers testified. Abimbola Osundairo, the younger of the brothers, said Mr. Smollett had asked him to “fake beat him up.”
The prosecution’s evidence included video surveillance of the men meeting up for what the brothers said was the “dry run” and Instagram messages from Mr. Smollett to Abimbola Osundairo shortly before the attack in which the actor provided updates on the timing of his flight back to Chicago.
The defense disputed that Mr. Smollett had planned the attack, arguing that both the messages and the footage were evidence that he had been interacting with Abimbola Osundairo because he had been providing the actor with fitness training.
Mr. Smollett, 39, who in 2019 was best known for starring in the music-industry drama “Empire,” maintained his innocence during the trial.
During seven hours of testimony over two days, he insisted that the attack had occurred as he described. But both prosecutors and Judge Linn had cited Mr. Smollett’s testimony as an aggravating factor that led them to pursue incarceration.
Judge Linn called Mr. Smollett’s hours on the witness stand, during which he denied planning the attack, “pure perjury.”
Bob Chiarito contributed reporting.
