(CHICAGO) — Jussie Smollett has filed another motion to dismiss the charges against him, arguing the grand jury testimony that led to his second indictment is invalid, according to documents obtained by the New York Post on Tuesday.

The motion, filed by Smollett’s legal team, contends the actor’s second indictment was based on “illegal and incompetent evidence” gathered from Abimbola and Olabinjo Osundairo during the initial investigation into Smollett, which was tossed out by a U.S. District judge.

The Osundairo brothers, who met Smollett on the set of Empire, have long maintained that he paid them to stage a hate crime against him because he was unhappy with his salary.

Following the initial dropping of felony charges against Smollett in March of last year, Chicago Judge Michael Toomin ruled the case was invalid from February 13, 2019 — the day Cook County State’s Attorney Kim Foxx recused herself from the case.

The motion states The OSP [Office of the Special Prosecutor] “cannot convene a special grand jury based on Judge Toomin’s Order but then rely on the transcripts from those ‘void’ proceedings to secure a new indictment.”

It further contends there is “no legitimate reason” why the Osundairo brothers, who live in Chicago, were available and have been cooperating with the investigation “were not called to provide live testimony to the special grand jury.”

“The only conceivable reason for not producing them,” write Smollett’s attorneys, “is because it did not want to risk having the brothers make additional contradictory statements prior to trial,” and “didn’t want to allow the jurors their…right to question the Osundairo brothers about the incident.”

The attorneys call the omissions “substantial and prejudicial” and asked the court to drop the charges on the grounds Smollett wasn’t granted his due process rights as required by the Fifth Amendment.

By George Costantino
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