(NewsNation Now) — Jussie Smollett is now a convicted felon after a jury found him guilty of staging a racist, homophobic attack on himself. While he waits for his sentencing in the spring, his attorneys are vowing to appeal his conviction.
April Preyar, a practicing attorney and legal analyst for NewsNation, believes the Smollett team may have a winning argument to get a new trial.
Preyar, who was in the courtroom for the trial, said there were not enough seats for the general public in the courtroom because of COVID-19 restrictions in the early days of the proceeding, which might amount to a Sixth Amendment violation.
“Because of COVID restrictions, there were 57 [seats in the courtroom],” Preyar said on “NewsNation Prime” on Thursday. “And that included the 12 jurors plus two alternates, that included the seven defense attorneys, that included the prosecution, and then 21 slots for the media and I believe it left two slots for the general public. You can’t do that.”
There is precedent in Illinois for allowing a retrial based on this. In 2016, an appellate court ruled Darryl Evans was due a retrial after being convicted for murder because his step-grandmother was told to leave the court during jury selection since the courtroom wasn’t big enough.
“In so doing, the trial court violated the right to a public trial, and as it was structural error, we must reverse Evans’s conviction on that ground,” the opinion reads.
The Sixth Amendment guarantees a defendant’s right to a public trial, and Preyar says what she saw in the early days of Smollett’s proceeding may qualify for a do-over.
“I was one of those … people of the public who were barred and had to go up the chain and talk to the chief judge and say, ‘This is ridiculous,’ and finally get an overflow room,” Preyar said. “But we didn’t get the overflow room until the second Monday of the trial.”
Still, even if an appellate court believes this argument, Preyar is not convinced the final result will be different.
“Maybe with a different jury, you’ll reach a different result, but I’m not so sure,” she said.
