What happens if prosecutors can’t call Abel and Ola Osundairo in the hoax trial of Jussie Smollett? That possibility arose yesterday, but not because the two brothers who helped stage the fake hate crime have changed their story. They are tired of getting treated like suspects, they claim, and they want their property back too.

Right now, Chicago police can’t — or won’t — even tell them specifically where the items that got seized are being stored, the brothers say. Police say they know where the items are, but have to retain them as evidence:

Abel Osundario and his brother, Ola, will no longer testify willingly against Jussie Smollett, according to their attorney, Gloria Schmidt Rodriguez – in part because the brothers say they’re still bring treated like suspects despite being cleared by police.

“I would understand if we were defendants in the case, which we are not,” Abel Osundiaro said. …

On Wednesday, Abel Osundairo filed a police report.

The brothers and their attorney say they are in an administrative dispute with the CPD over the items seized in that 2019 raid — specifically the whereabouts of the 9mm gun and ammo inside the safe.

“Of course I’m skeptical, because you are saying one thing one day and another thing another day,” Abel Osundairo said. “It’s just another thing we have to go through.”

Chicago Police say the gun in question is accounted for and is being preserved as evidence. The CPD provided documentation to De Mar to corroborate the whereabouts of the gun.

Just how “cleared” are the Osundairos, though? They didn’t get charged in the attack when it turned out to be faked, but they participated in hoax itself, according to their own admissions. It’s not as if they popped up immediately after Smollett’s public claims about being attacked to say that the whole thing was a goof, after all. Police spent a good deal of time and effort tracing Smollett’s steps and then identifying the Osundairos as his accomplices first.

That makes their sudden lack of enthusiasm for further cooperation look a little less than genuine. They could still face charges themselves as Smollett’s accomplices. Unless the prosecutors in the original case were completely incompetent — and that’s still a non-zero probability — any immunity the pair received was likely contingent on total cooperation all the way through to testimony at trial. The Chicago PD won’t release the evidence seized until the matter is settled because it’s their leverage to ensure the Osundairos’ cooperation. If they have to charge the Osundairos, they’ll need the evidence to show how they abetted Smollett in his crime. The Osundairos want their seized property back to make sure they can’t be prosecuted later, or at least to make it more difficult.

If nothing else, prosecutors can subpoena them and force them to testify anyway. They have the earlier sworn statements and an apparent immunity agreement, the latter of which means the Osundairos can’t take the Fifth on the stand without being found in contempt and landing in jail. If they lie, they can not only get charged in this case but also get tried for perjury. Prosecutors would undoubtedly prefer to have them cooperate, but they can play hardball if need be — and the Osundairos will discover that they’re once again playing out of their league.