When singer R. Kelly’s trial resumes Thursday morning, the defense team for the R&B star and his co-defendants will take center stage at the Dirksen Federal Courthouse, as they start making their case for a not guilty verdict.
Prosecutors rested their case on Tuesday after putting more than 20 witnesses on the stand against the singer.
Legal analysts who have been following the proceedings say the government’s case against Kelly is stronger this time around — compared to his 2008 trial in state court on child pornography charges when a jury acquitted him — and the defense likely faces an uphill battle to have the singer found not guilty a second time.
Still, there are areas where the defense could make strong arguments for the singer, including raising questions about the authenticity of videotapes that allegedly show Kelly abusing an underage girl, the legal experts said.
Much has changed for the singer in the 14 years between the two cases. In 2008, Cook County prosecutors only had a single grainy video that allegedly showed Kelly engaged in sex acts with a 14-year-old girl.
At that time, the girl, who has been identified in court as “Jane,” denied she was on the tape, as did her parents. This time around, the now 37-year-old woman has cooperated with investigators and took the stand during the first week of Kelly’s current trial, to say that she had previously lied to protect him.
“That is just a sea change for Kelly this time around,” said Tony Thedford, a Chicago attorney who has been following coverage of the trial. “It was obvious that when he was acquitted [in 2008] they did not have a witness corroboration ... and now they do.”
The corroboration, this time, also includes three other women who claim they were sexually abused by Kelly while they were minors, including two who said they joined Jane and Kelly in threesomes.
A new tape that surfaced in 2019 also complicates matters.
Turned over by a former Kelly associate who has testified he twice collected six-figure bounties to round up incriminating videos ahead of Kelly’s 2008 trial, the video played for jurors showed Jane repeatedly mentioning her age — 14 — while engaging in sex acts with the singer.
“They have that tape, and it says what it says, but what is the origin of that tape?” Thedford asked.
Indeed, how that tape came into the hands of authorities could give the defense a chance to undermine prosecutors’ case, according to veteran litigator Todd Pugh.
“The players that handled this tape are not the most credible in the world,” Pugh said.
During their cross-examinations of Kelly’s alleged victims, Kelly’s lawyers said that three of them have sued or tried to extort him.
The video was turned over by Charles Freeman, an estranged Kelly associate who testified he found the VHS tape sticking out of a VCR in a home near Atlanta while on the hunt for incriminating tapes on Kelly’s behalf.
Freeman, who twice sued Kelly to collect a reward he said Kelly’s team promised him for their return ahead of Kelly’s 2008 trial, said he made copies and only turned one over to authorities in 2019.
The defense has said Freeman’s former lawyer, Michael Avenatti, delivered that tape to Cook County State’s Attorney Kim Foxx. Avenatti since has been convicted in separate cases — neither related to Kelly or the tape — of fraud and extortion.
“That’s not great for the government,” Pugh said, because it leaves room for the defense to argue the tapes were altered, or weren’t filmed when Jane was underage.”
“The defense of the case comes down to attacking the quality of evidence,” said Pugh, who was a close friend of the late Ed Genson, the legendary lawyer who led Kelly’s defense team in 2008. “The accusations are incredibly salacious, but if you break it down into parts, all of the parts are significantly damaged.”
Kelly in 2008 also benefited from his celebrity status and a public that was apparently more than willing to ignore allegations against a celebrity. Only a handful of fans have showed up each day over the three weeks Kelly’s current trial has spanned, and he’s already been convicted of child trafficking and racketeering in federal court in New York and is serving a 30-year sentence.
Kelly’s lawyers may not be able to sway all 12 jurors, but Pugh suggested he could use his celebrity to try to convince at least one of them and set up a mistrial.
“Things have changed with regard to celebrities accused of sexual conduct, but why go after Robert Kelly?” Pugh said. “Do you think NSYNC or other boy bands in the 1990s didn’t have some encounters with teenage fans? It’s not a legal defense, but it may resonate with some” jurors.
