If Jussie Smollett had only stayed quiet instead of being so publicly unrepentant, he might not be facing new charges and possible jail time, says a top Illinois attorney.

Despite avoiding jail time last year, Jussie Smollett could see one to three years in lockup after being hit by a new indictment, according to Illinois criminal defense attorney Steven R. Hunter. The former Empire star, 37, was indicted on six new charges on February 11 stemming from claims that he faked a hate crime in Chicago in January 2019. Smollett was indicted on 16 charges, and all charges were dismissed two months later. Despite his extremely lucky break, the actor spent time repeatedly declaring his innocence and speaking out against the Chicago PD. That was a terrible idea, Hunter tells HollywoodLife EXCLUSIVELY.

“[Smollett] and his lawyers probably made a huge mistake. He was given a gift, a deal from the prosecution that resulted in a dismissal of all charges in exchange for forfeiting his bond and having done some community service,” the attorney said. “All he had to do was keep quiet, but instead he went outside the courtroom and made numerous public statements declaring his innocence and stating that there was no deal. Instead, he and his lawyers claimed that the case was dismissed because the prosecution had a weak case.”

Smollett is accused of lying to Chicago police about an assault he said happened on January 29, 2019. The actor claimed that he was attacked by unknown assailants wearing MAGA hats who poured bleach on him, put a noose around his neck, and used racial and homophobic slurs; Smollett is gay. He claimed that one of the attackers yelled “this is MAGA country” during the attack. Detectives determined that Smollett had actually paid two brothers and aspiring actors, Abel Osundairo and Ola Osundairo, for the attack. Smollett’s acquittal by state attorney Kim Foxx, in exchange for forfeiting his $10,000 bail and completing community service, was truly shocking, and the case only got messier.

Judge Michael Toomin appointed a special prosecutor, Dan K. Webb, to take a closer look at the case in June 2019. The City of Chicago sued Smollett for the cost of police overtime spent investigating the alleged hate crime, as well. The six new charges against Smollett are all felonies. “Several factors went into this determination, including the extensive nature of Mr. Smollett’s false police reports, and the resources expended by the Chicago Police Department to investigate these false reports,” Webb said in a February 11 statement. Hunter says this case is “extremely unusual.

“It is extremely rare for felony charges to be reinstated after they have been dismissed,” Hunter explained. “On the rare occasion that I have seen it happen it is because of some new event, such as the defendant being arrested for another crime.” (Smollett was not re-arrested). It is not typical. I firmly believe that if Smollett and his lawyers had stayed silent this never would have happened.”

While “normally,” Smollett would likely get felony probation if convicted on the new charges, Hunter believes he could get jail time. “All of the counts in his indictment are Class 4 felonies, which carry a possibility of 1 to 3 years in the Illinois Department of Corrections, but also the possibility of felony probation,” Hunter said. “Under normal circumstances [Smollett] would be a lock for probation, but he has been so publicly unrepentant, that if he is convicted he may do time.”

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