US actor Jussie Smollett is to be released from jail after an appeals court agreed with his lawyers that he should be freed pending the appeal against his conviction for lying to police about a racist and homophobic attack.

The ruling came after a Cook County judge sentenced Smollett last week to immediately begin serving 150 days in jail for his conviction on five felony counts of disorderly conduct for lying to police.

In an outburst immediately after the sentence was handed down, the former star of the TV show Empire proclaimed his innocence and said “I am not suicidal. And if anything happens to me when I go in there, I did not do it to myself. And you must all know that.”

The appeals court, in a 2-1 decision, said Smollett could be released after posting a personal recognisance bond of 150,000 dollars, meaning he does not have to put down money but agrees to come to court as required.

Jussie Smollett
Actor Jussie Smollett listens as his sentence is read at the Leighton Criminal Court Building (Brian Cassella/Chicago Tribune via AP)

Smollett’s attorneys argued that he would have completed the sentence by the time the appeal process was completed and that Smollett could be in danger of physical harm if he remained locked up in Cook County Jail.

The office of the special prosecutor called the claim “factually incorrect,” in a response to the motion.

The court’s decision marks the latest chapter in a strange story that began in January 2019 when Smollett, who is black and gay, reported to Chicago police that he was the victim of a racist and homophobic attack by two men wearing ski masks.

The manhunt for the attackers soon turned into an investigation of Smollett himself and his arrest on charges that he had orchestrated the attack and lied to police about it.

The investigation revealed Smollett paid two men he knew from his work on Empire to stage the attack.

A jury convicted Smollett in December on five felony counts of disorderly conduct — the charge filed when a person lies to police. He was acquitted on a sixth count.

Judge James Linn sentenced Smollett last week to 150 days in jail but with good behaviour he could have been released in as little as 75 days. Smollett maintained his innocence during the trial.

Appellate Court Justices Thomas Hoffman and Joy Cunningham signed the order while Justice Maureen Connors dissented.