Crime Stories with Nancy Grace - 'EMPIRE' Star Fakes Hate Crime on Self? Jussie Smollett on Cross Exam Now

Episode Date: December 7, 2021

Actor Jussie Smollett spends more than six hours on the stand during his first day testifying in his Chicago trial on charges that he faked a hate crime attack on himself. Today, again, 39-year-old Smollett faces prosecutors who say the "Empire" actor was the mastermind of a orchestrated attack. Smollett claimed he was attacked by two men who hurled racial and homophobic slurs at him. They also left a noose around his neck. Two brothers who worked as extras on “Empire” later came forward and said Smollett had paid them to “attack” him.Joining Nancy Grace Today: Prof. Brian Levin - Director, Center for the Study of Hate & Extremism, California State University (San Bernardino), Co-author: "The Limits of Dissent", CSUSB.edu/Hate-and-Extremism-Center, Twitter: @proflevin LAWYER - Wendy Patrick - California prosecutor, author “Red Flags” www.wendypatrickphd.com 'Today with Dr. Wendy' on KCBQ in San Diego, Twitter: @WendyPatrickPHD Dr. Angela Arnold - Psychiatrist, Atlanta GA, www.angelaarnoldmd.com, Former Medical Director of The Psychiatric Ob-Gyn Clinic at Grady Memorial Hospital Joe Scott Morgan - Professor of Forensics: Jacksonville State University, Author, "Blood Beneath My Feet", Host: "Body Bags with Joseph Scott Morgan" Alexis Tereszcuk - CrimeOnline.com Investigative Reporter, Writer/Fact Checker, Lead Stories dot Com, Twitter: @swimmie2009 TIP LINE: Chicago Police Department [phone] Learn more about your ad-choices at https://www.iheartpodcastnetwork.comSee omnystudio.com/listener for privacy information.

This is an iHeart Podcast. It is D-Day for Empire star Jussie Smollett. He is on cross-examination in a court of law. This is after the star makes the risky decision to throw the dice and take the stand in his own defense. Crime Stories with Nancy Grace. Typically, a defendant will not take the stand because they cannot endure cross-examination under the old adage, better to remain silent and let people assume you're lying than speak and confirm their suspicions. Well, Smollett on the stand, but what, if anything, does it prove?

Smollett, the star of hit series Empire, claims he was the victim of a racial and gay-based hate crime when he leaves his high-rise luxury apartment at 2 a.m. for a subway in sub-zero temperatures. He claims his assailants were waiting for him out in the cold, threw bleach on him, and tied a noose around his neck. Is that true? The other problem with a defendant taking the stand, we all know, all you legal eagles know, that the burden of proving a case

is solely on the defendant, on the state's shoulders. The defendant has to prove nothing at trial, absolutely nothing. And I have had cases where I put up my case and the defendant says, we rest. And they don't put up anything because they don't have a burden to. But once the defendant takes the stand, even though it's not the law, the burden seemingly shifts in the minds of the jurors to is the defendant telling the truth. It becomes a litmus test of truth versus lie. Again, I'm Nancy Grace. This is Crime Stories. Thanks for being with us. First of all, guys, I want you to take a listen to our Cut 30. This is Charlie DeMar at CBS. The actor took center stage at his own trial today, trying to convince jurors he did not choreograph an attack on himself.

The defense attorney asking, were you planning a hoax? Smollett saying, no, there was no hoax. Smollett also denied paying the Osindaro brothers to buy supplies. And when asked why he didn't call police, he said, quote, I'm a black man in America. I do not trust police. I was also a well-known figure at the time and openly gay. I wanted to play a boxer. I wanted to play a superhero. The moment I got beat, I became an expletive who got whooped. Nearly three years ago on a frigid January night, Smollett told police that he was the victim of a racist and homophobic hate crime. Guys, again, you're hearing Charlie DeMar at CBS describing what's happening in the courtroom with me, an all-star panel to make sense of what we know right now. Professor Brian Levin, our esteemed guest director for the Center for the Study of Hate and Extremism at San Bernardino, co-author of The Limits of Dissent, Wendy Patrick, California prosecutor, author of Red Flags on Amazon, and host of Today with Dr. Wendy on KCBQ, San Diego, renowned psychiatrist joining us from the Atlanta jurisdiction, Dr. Angela Arnold at AngelaArnoldMD.com,

forensics expert Joseph Scott Morgan, professor of forensics, Jacksonville State University, and author of Blood Beneath My Feet on Amazon, and star of another new hit series, Body Bags, with Joseph Scott Morgan on iHeart. But first, let's go to CrimeOnline.com investigative reporter Alexis Tereszczuk. Alexis has been on the case from the very beginning. So Alexis, Jesse Smollett takes the stand. Now he's starting his cross-examination. Explain to me what happened on direct exam with Jesse Smollett. So he spent quite a few hours first with his defense attorney. The prosecutor just had a very quick point that he wanted to make. He went right in on his relationship with the brothers.

He wanted to know. Wait, who? Wait, wait, wait, wait. Who is he? The defense lawyer, Smollett, or the prosecutor? The prosecutor. Okay. So could you rephrase, please?

The prosecutor was able to question Smollett, or the prosecutor? The prosecutor. Okay, so could you rephrase, please? The prosecutor was able to question Smollett. He went right for the relationship with the brothers, because this is the key to this whole case. Is Jesse telling the truth? Did he, were these brothers... Excuse me, are

you on a first name basis with Jesse Smollett? What, do you expect him to come over for dinner after the trial? Well, he's a Hollywood celebrity. I'm talking to you, Alexis. You always feel like you're close. Like they're more than just people on the TV. And after watching the show and being a fan of it.

Okay. See, I never saw Empire. Don't hate me. I was too busy working and raising my children, Alexis. But you go ahead so he takes not judging the stand and he explains his relationship with these brothers because these are the two he has said that he was attacked by two men and that they were screaming this is mega country and calling him homophobic slurs well it ends up it's people that he knows in fact it's

people that he has given money to and in fact it's people that he knows. In fact, it's people that he has given money to. And in fact, it's people that he's been. Wait a minute, Alexis, aren't you kind of burying the lead? It's not just the two Osidoro brothers. They weren't just people that he knows. He claims to have gone to a gay bathhouse with one of them and had amorous activity. I guess I mean sex in a private room at a bathhouse. Don't you think, Alexis, I mean, you're the investigative reporter, that he would recognize the guy he's been having sex with? Of course, the Osidoro brother denies it. But how can both of those be true? Well, he didn't recognize them. He said they were wearing masks. And in fact, he didn't even identify them both as black when he was first

speaking with cops. He thought perhaps one who had lighter skin than the police arrested. Didn't he say they were white wearing MAGA hats? Yes, but they. Okay, so Alexis, did he say his attackers were white or not? But it's 2.30 in the morning. They were wearing masks. But he said they were white. He did. Okay, you know what?

I'm not getting a clear picture, Alexis. Let's just start with what did Jesse Smollett say on direct exam? He said that he was having a physical relationship with one of the brothers, that they had gone to gay bathhouses together. He was also saying that he hired these two brothers to train him to get in shape for a music video. He said that the director,

the creator of the show, Lee Daniels of Empire had told him he was fat. He was 30 pounds overweight and he needed to lose weight. And he also said one of the brothers told him that he could get him a special weight loss pill or powder that could only come from Nigeria, where these brothers come from. And that's why he was giving them money. That's why he had written them a check for $3,500. It was to train him to get him in shape and that he was

texting them to try to get this illegal Nigerian weight loss pill. And what pill is that? An illegal Nigerian weight loss? I thought it was some kind of an herbal supplement. Did he divulge that on the stand? I don't recall if he said the exact name of what it was called, but he said that they had told him that they could get him something that was only available in Nigeria, not in the United States, and it would help him lose weight very quickly. So there's a weight loss supplement that exists in Nigeria, and we don't have it in the U.S. I thought we had every weight loss supplement known to man in the U.S. That's a whole nother can of worms. How did Jussie Smollett explain the fact that when cops arrived at his apartment, he refused to give them his cell phone

to see who he had been calling leading up to the attack? And isn't it true that one hour and approximately 10 minutes before know he has said that he likes to drive around and smoke a blunt which is a joint while he is filming and he didn't want them to know about anything that he said about drugs which was just marijuana he says okay again please use proper names because there's a lot of he's floating around in this case okay Okay, you just said... Mr. Smollett said... You just said that Smollett would smoke a blunt. Okay, isn't it also true on the stand yesterday Smollett admitted that he would use cocaine with the Osidaro brothers? He claimed that he would use cocaine with them, yeah. Crime Stories with Nancy Grace. Let's bring in the whole panel. Wendy Patrick, how is it possible that he said he didn't want the brothers to know he did blunt, which is pot, but yet he did cocaine with them?

It isn't. And that's one of the things that jurors are going to be able to consider now that he took the stand and really laid it all out there remember when a criminal defendant takes the stand they are allowed to judge credibility as with any other witness they're not supposed to be doing it if the defendant is just sitting at the table availing himself of the right to remain silent but what once he's on there, everything he says is going to be cross-examined. And that question you just asked, you bet that's going to be asked back in the deliberation room as well. Guys, take a listen to Patrick Elwood, WG in Chicago, Our Cut 29. Almost three years after he reported being attacked amid homophobic and racial slurs, actor Jussie Smollett took the stand in his own defense today.

While being questioned by his attorney, Smollett described the early morning incident, saying he had gone out to Walgreens to buy eggs, but it was closed, so he opted for a Subway sandwich store instead. On his way home, Smollett says he crossed paths with two men wearing ski masks, with one of them yelling racial and homophobic slurs and saying he was in MAGA country while recognizing him as an actor on the TV show Empire. Smollett says he threw a punch in his defense, but doesn't know if it landed. He fell to the ground and was kicked. He testified that after the attack, he didn't even know there was a noose around his neck because, quote, I was getting my ass whooped, unquote.

OK, that sounds fantastical to me. Dr. Angela Arnold, psychiatrist, could join us out of Atlanta for a black male to have a noose tied around their neck. I mean, that brings up so many horrible racial hate images and connotations. I would know if there was a noose around my neck and I would get it off immediately. And then, Nancy, I agree with you. And then to describe it as he did as a Looney Tunes-like hit, there's a word that we use, and the word is incongruent. Those two things are not congruent with each other. For someone to put a noose around a black man's neck, like you said, has so many connotations to it, so many racial connotations to it. But then to say it was a Looney Tunes-like act, those two things don't mesh with each other. Yeah, it goes to behavior on the stand.

Professor Brian Levin, I find it very difficult to believe that a black male familiar with racial hatred that has torn our country apart for so many years to be so dismissive of somebody wrapping a noose around your neck and then referring to it as a Looney Tunes event. Not only that, it would have been far more believable had he thrown that noose off his neck and ran from the scene. I mean, that would have been believable. But look, here's the thing that I got to say here. He came up with an excuse for everything.

They weren't good excuses. They were paper excuses that crumbled with a variety of facts that came out. He said like his creative director or something told him to keep it on or something like that. His manager. Hold on, let me explore that. Alexis Tereschuk, isn't it true that on the stand, Jesse Smollett, the star of Empire, revealed once he was confronted with the photo, the video surveillance of him coming into his high rise after the attack, the news was one way.

When the cops got there, their body cam reveals, it's another way. And he first said, I never tampered with the rope. Then, when shown the video comparison, he went, oh, yeah, I did take it off, but my manager told me to put it back on for when the cops got there. Didn't that happen, Alexis? Yes, and he said that his manager told him, don't tamper with evidence, so he retied it the way that it had been tied around him, what he claimed. But it wasn't tied that way when he came into the lobby of his high-rise. No, it was hanging more draped around his neck. Professor Levin, go ahead, please.

Look, here's how I look at it. If I could just take a macro step here, because I looked at the various Q&A that existed on Cross. He came up with a little scrap of paper, if you will, for everything that came up and held it out as a shield. Right. But here's the thing where just bear with me on this. OK, here's the thing where I think he's trying to throw that Hail Mary pass. And that is, look, two things. One, have the credibility of the brothers come into question. And there were some issues with that. Right. But his main point was, look, I don't trust the Chicago police and neither should you, because I'm a social justice activist.

And when you have 55 percent of African- Americans having concerns about calling the police, whether we think the evidence lines up, when you have that kind of landscape, if you can get to a juror to take that doubt, which to us looks incongruent and frankly preposterous. For people who have viewed things or had experiences through a different lens, right? Remember the OJ case. Now in that case, just bear with me for one second. In that case, we actually had a guy who was really discredited, right? Remember the detective who said he never used the N word? Here you don't have that, but you still have cases from the past where we had police lie in Chicago about the killing of a teenager, right? So what I'm saying to you is that's the past. In other words, the goals might be blocked for all the other jurors except for that one that might have come in with a seed of doubt about the

whole system. And that's what I think he's trying to exploit, if he can, for that possible juror or two who might be willing to look at it from that angle. If you look at just the evidence out of a box and just didn't know the background, you'd go, this is preposterous. But as you know, and that's what I wanted to say, one of the exciting things about being on your show, as a prosecutor, how do you handle that one? I think the way I would handle it is to point out the glaring inconsistency of Jussie Smollett, a black male in America, a gay black male in America, claiming that another gay black male in America performed a hate crime on him, Smollett, because he, Smollett, is a gay black male in America. That doesn't make sense.

That doesn't make sense at all. Does it make sense to you, Professor Levin, that one gay black male would attack another gay black male? No. Out of hate because he's a gay black male? That doesn't make sense to me. over in Oregon, inconsistency one, inconsistency two, inconsistency three, to try and get over a presumption that may be in the heads of some of the jurors that the police in Chicago don't play it straight. I think you're right. He's got to fight it.

He's got to fight that potential problem that he's got. You know, back to you, Alexis Tereschak, I understand that originally he claimed that he left his apartment to go and get a Subway sandwich. Now we're hearing on the stand that he decided to go out and buy eggs at Walgreens because the Osundari brothers told him to for weight training purposes. And when Walgreens was closed, that's when the whole Subway sandwich thing happened. This is the first I'm hearing about Walgreens. The eggs and Walgreens trip is a new part of the story.

We had not heard that before. And that's what he testified to. He said he was trying to lose weight. That's why he called them because what has been established is that there is a phone call that he made about an hour and a half before the attack to the brothers. So this is his explanation for that. Instead of I called them to arrange to come beat me up. Okay. In an hour and a half, we're going to meet on the corner of the street.

It was, Hey guys, that's true. Well, I guess at that point it's 12.30 in the night. I'm starving. What could I eat that would make me lose weight? Okay, the obvious answer is nothing. Crime Stories with Nancy Grace. crime stories with nancy grace to you joseph scott morgan professor forensics there are so many forensics issues first of all all the video i i think levin professor brian levin is right. In order to tackle, to surmount any type of fear or prejudice toward the police, you've got to point out to this jury all of Smollett's inconsistencies. And I would start with the video.

And I'll circle back to the eggs. But the video showing not only the way his rope had been adjusted and tied around his neck more like a noose for when the cops got there, but also the video of Smollett doing a dry run with Osindaro brothers in the days leading up to the attack. What about that video, Joe Scott? Yeah, and what you're proposing is that the jury, you can't believe your lying eyes. It's something that is concrete relative to visual evidence, which is very important in a case like this, where he is saying absolutely one thing, and the video evidence defeats it relative to what the jury is viewing before them how do you diminish that in any way are you going to take the extra step now as the defense and say well well all this video you know don't believe it it was all you know it's

all fantastical it's it's been it's been manipulated and that can be implied they can imply anything that they want to because remember remember, at the end of the day, all they're trying to do is find one jury member there that they can implant reasonable doubt in. But with physical evidence like that, you know, you mentioned the rope as well with it being manipulated. And this is another thing that's so super bizarre here is when you begin to think about his manager telling him that he needs to take this critical piece of evidence and place it back around his neck. And this goes to something that people in Hollywood are always talking about, the optics of things. You know, how do they appear?

Well, we want to be a master thespian here and present for the cops as some kind of sympathetic character as they walk through the door. And think about it, Nance, is that there are so many people that surround this environment. They're enduring so much violence at the hands of one another and other people. And this guy, as Dr. Levin had pointed out, is using these weak, weak things that he's putting forth as a shield. And it's horrible to listen to. Alexis Dreschak, it comes out that the jury has seen video of Jesse Smollett, the Empire star, walking around the area where the attack occurred on Jan 27. The attack occurred in the early morning hours on Jan 29. So less than 48 hours before the so-called hate crime attack occurred.

There is video of Smollett walking in the same spot with the Osindaro brothers doing a dry run of the attack. How do you get around that? Well, it is his neighborhood. He lives there. So this is you know anybody would take a stroll although it is absolutely freezing cold in chicago but if you live in chicago you're fine walking around chicago when it's freezing cold um but the police he said

that he he testified smollett testified on the stand that he would often get in his car with one or two of the brothers and drive around and smoke marijuana. He would do that. And that seemed to be what he was saying he was doing two days for, that that was something they'd always done in the past. And it was just a way that they chilled. They were not driving. They were walking near the scene of the alleged attack with the two Osindoro brothers. And the brothers paid a bill at a beauty supply

for some of the, they got, had to get a rope. They had to get masks. They got gloves somewhere. They got bleach. They say with a hundred dollar bill Smollett gave them, and there's a video of them doing that. Guys, take a listen to our cut 31. The actor described his attacker saying it felt like something out of a Looney Tunes adventures. It felt like someone massive coming up to me. Not enough time to think this person felt significantly larger than me dressed in dark clothes, a ski mask. Smollett told the jury he fought back saying, quote, I would like to think I landed a punch. I know I certainly threw one. the attack. The man was wearing a black mask and a black ski mask. Smollett told the jury he fought back saying,

quote, I would like to think I landed a punch. I know I certainly through one small I was asked why he never called police. He responded. I'm a black man in America. I don't trust police, Smollett said after a threatening letter was

sent to him at the Empire Studio executives got him a counter to the special prosecutor's claim that Smollett planned the attack because he was unhappy with the response the letter received. I'm ready to do what I got to do. I'm ready to do what I got to do. Alexis Tereschuk, tell me about the death threat or the hate mail that Smollett got at the Empire Studios. And I find it more than coincidental that this letter exists, whether Smollett wrote it to himself or not. And the Osindoro brothers say Smollett wanted to do this attack because the studio did not take the hate mail seriously. And he wanted to bring attention to himself to get more money in his next contract. So that's the Osindoro brothers' story,

and the hate mail exists. And the studio was told about the hate mail, and the studio did not give him a raise, one that he wanted anyway. What about it? That seems to corroborate what the Osindoro brothers are saying. So the studio did take it seriously.

So it was a picture of a man with a noose around his neck, or a person, a man with a noose around their neck. It was a stick figure. And with a noose around their neck. So this is one of the worst images out there. But the studio offered to give Smollett security. They were worried about him. They said, we will provide security for you.

He said on the stand, I didn't want their security because my schedule during the day is I come to work in the morning. And then at lunchtime, I leave. I drive around the neighborhood. I smoke marijuana. And then I don't want the security to see that. So then he says the brothers begged him to let them be his security and that he didn't want them to be security either. So that's part of his defense that they wanted to work for him. And that's maybe why they attacked him as well, because he wouldn't hire them as security. Nancy, this is Wendy. This is one of

the things we're all talking about is once he's taken the stand, it's reasonable interpretations of the evidence. What we're establishing is that the evidence is not consistent with Mr. Smollett's testimony. It's more consistent as it's coming out and as we're all rehashing it here with what the brothers are saying. And when the jury considers that, that's going to be the question. You know, sometimes actors over or underestimate their ability to narrate events. We've seen that in several high profile trials involving Hollywood actors that are either very good and very persuasive or not, but they think they are. And sometimes we wonder whether that's why someone took the stand. But his interpretation of the evidence

is not consistent with all of the other circumstances that we're discussing. It is, including this hate mail that Alexis just so eloquently put out there, the way that was described is consistent with what the brothers said. So it might just come down to that, to the corroboration and the consistency. Guys, take a listen to Our Cut 33. This is Charlie DeMar at CBS News Chicago. Smollett said after a threatening letter was sent to him at the Empire studio. Executives got him security and took the threat seriously. A counter to the special prosecutor's claim that Smollett planned the attack because he was unhappy with the response that letter received. The actor also told the jury that he would do drugs with Abel Osindaro and the two had a physical relationship. He said during a bathhouse encounter there was some touching. Abel denies those claims.

Abel denies those claims. So it's boiling down to a he say, they say. Let's talk about the various inconsistencies, because I think Professor Brian Levin is correct. The only way the state's going to win this case is if they show the jury very clearly on a visual during closing arguments as they verbally argue those inconsistencies at the same time, a double whammy. They see it, they read it, and they hear it. When they go back to that jury deliberation room, that's what they're going to be thinking about. The inconsistencies, Joschka Morgan, professor of forensics, which inconsistencies stand out the most to you?

Well, I think that what we have to consider here, I think that one of the key pieces here is this letter, Nancy. It was essentially constructed as a result of magazine cutouts, if you will. And, you know, the postal, the U.S. Postal inspectors who are very good at this sort of thing, as well as the FBI, probably their question document section really got on this thing. And these these are this is different than examining handwriting, for instance. This actually comes comes into where you're having to examine the margins of these cutouts and trying to match them up, either include them or exclude them as part of evidence. But I think it goes to a bigger point here where why would this one individual out of all the individuals in Hollywood receive a particular letter like this? Does he drag up that much hatred out there among the American public that he is going to be targeted. And so

this evidence that they're going to submit and that they're going to be discussing in trial, the jury is going to examine that. And they're saying, you know, look, out of all the people, you know, why would he be targeted? Why is he such a polarizing figure in this? And I just, I don't see it. I don't see it holding water, you know, moving forward. And then you, you throw the video evidence in here and, you know, to, to Alexis's point relative to people in Chicago being used to the cold. Yeah, they are used to the cold being out walking around, but they also are aware of how deadly the cold is. We're talking about temperatures, Nancy, that are sub teens at this point, the people in Chicago are smart enough to know to stay indoors. You don't go out looking for Subway sandwiches and eggs and whatever the hell else he's looking for.

It just doesn't marry up the physical evidence that they have and all of the circumstantial evidence. crime stories with nancy grace isn't it true alexis teres chuck that regarding this hate mail jesse smollett's alleged hate mail. They determined that the hate mail, the return of Jesse was simply scrawled MAGA. Never contained any ricin or any other dangerous powder. They said, as a matter of fact, it's much more likely that whoever opened the letter, Jussie Smollett, had taken a Tylenol at some point. That's what they said. The Postal Service, you think they got a dog in the fight? They don't care. They're just trying to deliver the mail for Pete's sake. So they't care less and this was their opinion they closed the case they said at most Smollett took a Tylenol before he opened the letter yes correct they they

did close the case but the studio did take it seriously and also with regard to his why are you saying that what difference does it make because he is then so the studio took it seriously they offered him security he turned down the security but then took it seriously. They offered him security. He turned down the security, but then he's saying the brothers offered to be his security. Like, it just isn't connecting. Okay, now I get it. So they offered him security for free. He turned that down, but yet he was talking to the brothers about being his bodyguard.

See, I thought the brothers, he's claiming the brothers wanted to be a bodyguard, but that he wasn't going to hire them. Could I just interject a quick point? Jump in. Okay. Now, if the letter said MAGA, first of all, I think that a celebrity could, in fact, even one that's not like total AA list, right, could get hate mail. But here's the thing. We all get hate mail, Levin. We all get hate mail. I got it.

Why don't you go online? I bet you've got some hate mail online. I get some routinely. Yeah, we all get it. In the letter, though, it says MAGA. Just bear with me, though, because we're talking about kinds of forensics. Let's look at just a slightly nuanced version here, though.

He gets the letter, it's stick figure, figure noose and it says maga okay then he's attacked by folks who have a noose and maga hats at like two in the morning when it's freezing for me that's just a bridge too far had it just been a letter that said i hate you you're you're you know die right it's too close together it's like the dog it's too much of a coincidence the dog ate my homework and look there are real bite marks you see what i'm saying it's too it's too consistent so what i'm saying is in most of the stuff that we're seeing, there are real inconsistencies. The one place where we see a consistency, a letter, and then at like 2 in the morning or 1 in the morning when it's freezing, some folks with a new Shanmaga hat, it just sounds too staged.

Because it is. And it turns out the attackers are people you've been paying that you do a dry run with to about 36 hours before the attack hey you know what i want to i want to talk about that the likelihood that it would be anybody else beside smollett the latter as 11 points out stick figure with a noose from maga and then suddenly his two friends that he's had sex encounters with, according to him, attack him, put a noose around his neck, and he claims they're yelling, this is MAGA country, and wearing a MAGA hat.

But one quick thing on that. Even if that letter was legitimately a hate-mongering letter from someone who hated him, right, he still played it allegedly. He still allegedly played that script. So even if that letter was legitimately a threatening letter, the fact that he then ran with it as kind of the script for the play that, that actually petered out. I think it's Danny either way, whether he, whether he made the letter up himself.

Okay. But even if he didn't, he still could have orchestrated it around that letter to make it more believable either way. I think that's a dead end. I just don't see how he can get around the dry run caught on video. I asked Joseph, Joe Scott Morgan, what he thought was the most serious evidence. And I want to talk to you guys about what you think is the most serious

inconsistency. What about it, Wendy Patrick? Nancy, I think the most serious inconsistency is all about how this actually came about in terms of what he was doing out on the street, because everything else stems from that. When you look at the motivation he would have had for making this up, that's one thing. You can imagine if the career was flailing, wanted to draw attention, never thought it would go to the police. The never thought it would go to the police component explains so much on either side. It would explain why they were willing to take risks, why they were willing to have their stories diverge, why they didn't get it together. If you never expect to have anybody cross-examining your statement, you're not going to take those types of precautions. So if you look at the underlying motivation behind the act, I wouldn't

be surprised if they don't hit that hard on a closing argument, whether the prosecutor says, this is why you have all those loose ends, because nobody expected us to have tied them up the way that we did. That's what I think this case is going to come down to. Dr. Angie Arnold, I find the subway sandwich slash Walgreens argument from a strictly personal point of view to me, be the least believable and the dry run. So he's having sex encounters with one of the brothers that deny it and a bathhouse. And he's with them 36 hours before, and he's on the phone with them an hour and 10 minutes before they attack him. Yet he doesn't recognize them. There's that. And then the going out at 2 a.m. for a Subway sandwich.

That's what he said to start with. He never mentioned Walgreens until now. That's what he told the cops. He went out at 2 a.m. I mean, Dr. Angie, what do you do at 2 a.m. when you're hungry? Well, I don't wake up at 2 a.m. But let's just pretend you did. But I would go down to

my kitchen and and grab something such as um chocolate i mean i mean or a bowl of cereal or a bowl of cereal okay what about you levin what would you do 2 a.m hungry this happened to me the other day i i didn't eat a lot during the day, went downstairs, rummaged through the refrigerator and ate what was kind of there, an edible, a little cheese wrap with some stuff and a can of soup. Wendy, what about it? You know, Nancy, I'm just getting up at 2 a.m., as you and Jackie know, because I do so much East Coast media in the morning. But one thing I wanted to point out is I would make sure my fridge is stocked and I certainly wouldn't go out in a polar vortex. That was also unbelievable to me. But that's one of the things that Mr. Smollett has tried to turn around by basically saying, look, I'm not like other people.

Why are you trying to evade the question of what you ate at 2 a.m.? Well, I usually just have coffee at 2 a.m. because I've just awoken. So my cereal comes at 2.30 and it's already in my fridge or in my cupboard. I would never go out in the middle of the night to forage for food. Joe Scott, what about it? Dark chocolate and cheese, man. At 2 a.m.? I'm basically a garbage gut. Whatever I can find, I'll just eat it. Even if it's really old, if it's expired expired a piece of cheese, a glass of milk whatever's left over from supper Alexis, what? What is it?

What's the go-to 2am? Granola bar we have lots. Oh, of course, you're all California healthy I bet it's like an organic You're a great cook, so you have better options to choose from than the rest of us I mean, this whole going out literally, when Wendy Patrick said a polar vortex,

there was a polar vortex. It was sub-zero temps. And Alexis, isn't it correct that this whole Walgreens, buying eggs at Walgreens story just came up? I wouldn't think of going to buy eggs at Walgreens. I'd go to a grocery store for eggs. But whatever, didn't that just happen on the stand? It did, which makes me think that the prosecutors perhaps can go back to this, although it's been a couple of years now to get video

evidence, but there's no video evidence of this. And perhaps the defense at the time would have gotten the video evidence to say, look, here he's at Walgreens because everything else has been on video and it was closed and he walked there first. Guys, we're attacking the inconsistencies in Smollett's story. I wonder if the jury is going to see past all of the claims Smollett is making. We'll see. We wait as justice unfolds. Nancy Grace, Crime Story, signing off.

Goodbye, friend.