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R. Kelly: THE TRIAL

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— by Jennifer Vineyard

Like other sex tapes from the recent past — Pam Anderson and Tommy Lee's, Paris Hilton's — the one that allegedly stars R. Kelly is notorious enough to be a prime-time punch line. At last year's MTV Video Music Awards, Chris Rock joked that Kelly shouldn't be seated anywhere near the underage Olsen twins. In "Barbershop 2," Cedric the Entertainer wondered whether Kelly was set up — or if he just set up the camera. And Dave Chappelle has used it in no less than three skits on his show, including a mock-Kelly music video called "Pee on You" and a jury-selection segment in which he "digitally" urinated on the prosecutor.

But the criminal charges against one of today's biggest-selling pop stars are no joke. Kelly's not accused of just making a sex tape — he's accused of making child pornography. And if convicted, he'll face 15 years in prison.

Kelly and his lawyers have alluded to a possible defense that oddly echoes the "Barbershop" scene: They suggest that Kelly's been set up, that he's being blackmailed by a former manager. If the tape is proven to be authentic, however, whether or not Kelly's been blackmailed wouldn't matter in a court of law. If the singer is found to have done what his accusers claim he's done — to have videotaped himself performing sexual acts with his 14-year-old goddaughter — then he'll be guilty, period.

But how will the prosecution go about making their case? It might seem as if having the videotape would be proof enough, but the situation isn't that simple. Kelly claims that the man in the tape isn't him — and the purported victim (whose identity we won't reveal here) says the girl in the tape is not her, either, and the images on the tape are not clear enough to eliminate all doubt about the identity of the participants.

This leaves the prosecution to attempt to prove three things: that the tape is authentic (not digitally or otherwise manipulated or distorted), that R. Kelly is indeed the man in it, and that the girl in the video was under the age of 18 when the tape was made. If the state's attorneys can prove these three things beyond a reasonable doubt, in all likelihood, Kelly will be found guilty. If not, he walks. But how will they prove those things? And how might Kelly's defense attorney respond? Amid the blizzard of news reports and updates that have arisen in the two years since this story first broke, it's been easy to lose sight of the basics. Let's take a look.




   
 
Forensic-video expert Conor McCourt explains the process: frame averaging, resizing, lightening and brightening.

 
 
After adjusting the contrast and brightness and sharpening the image, an earring in the man's left ear becomes clearer.

 
 
"This is home video. Doesn't really lend itself to morphing. This is shot on a $3 budget."

 
 

The Tape: Is It Authentic?

If you've seen or heard about "R. Kelly Triple-X," "Rated R. Kelly" or other such titles, you know there is more than one alleged R. Kelly sex tape making the rounds. But only one of them concerns the Chicago authorities: It's a third- or fourth-generation copy, about 27 minutes long, that allegedly shows Kelly filming himself participating in various sex acts — including fellatio, intercourse and urination — with a 14-year-old girl.

Chicago police say the FBI has authenticated this tape at the bureau's forensic lab in Quantico, Virginia. Kelly's defense team, however, insists that the tape has been doctored. Both sides are expected to call their own forensic-video experts to testify. However, dueling experts usually muddy judicial waters, and at this point, there's no telling how persuasive either side's specialists will — or won't — be.

Establishing when the tape was made — and thus establishing the age of the girl in it — will be difficult because the tape is not a "master" (original copy) and thus has no time stamp. But there are clues: For instance, songs by the Backstreet Boys and the Spice Girls can be heard in the background on the tape, as well as a commercial for a store that went out of business in 2000. Prosecutors will argue that those details indicate the tape was made between late 1998 and early 1999, when the girl was 14.

The fact that the tape is a duplicate also causes problems with clarity: Some of it is blurry. But with the aid of programs like Avid Xpress and dTective, video experts can isolate each frame, and then magnify or lighten key aspects that could prove revealing. Think of the scene in "Blade Runner," when Harrison Ford is searching for clues in a photograph and is able to find them by magnifying a mirror's reflection; or Naomi Watts in "The Ring," digitally manipulating a tape to open up an extra inch or two of image beyond the video frame and finding an object that wasn't previously visible. Cameras capture more image on tape than is usually seen on a television screen: Forensic video experts literally always think outside of the frame.

But while they're looking for hidden clues, the forensic video experts in this case are, of course, also considering the big picture: Could the tape have been altered? Is it possible that Kelly or the girl might have been digitally plucked from another tape and dropped into this one, the way Bill Clinton was dropped in the film "Contact," or Forrest Gump was dropped into historical footage? If that were the case, the interaction of the principals on this tape would appear slightly unnatural, according to one expert. Forensic video analyst Conor McCourt said there would also be distortion around their bodies, which would not necessarily be apparent to the naked eye but would turn up quite clearly on his sophisticated equipment.

"It's pretty evident when someone does a morphing or changing of the videotape," McCourt said. "You can see it around a person's head, and it just doesn't look natural. The person in the foreground wouldn't have the same lighting or texture, [there would be] a kind of blurred pixilation that doesn't match. It'd look like it was shot in two different places. But [in this tape], they're sitting on the furniture, they're moving around in the room. It appears to me that the objects in the video are [actually] there."

That said, the tape still could be a fabrication, McCourt added. But it would have required technological — and financial — feats on the order of some of the special effects in the "Lord of the Rings" movies. "It's an extremely intense, very detailed process," McCourt said, "and it would take a lot of time and money to morph somebody into a videotape. Even when I look at a commercial that's done for millions of dollars, where they take Humphrey Bogart and superimpose him into the commercial, I can still see that it's not exactly right. And that's done with the most amounts of money and the best technicians. This is home video, and it doesn't really lend itself to morphing."

Still, Kelly has stuck to his story. "I'm not a professional in [the video] area," he told MTV News when he sat down to address the charges in 2002. "But I do know this: It's not me. And if it's gotten me to this point, sitting in this chair talking to you about this, then it's obvious someone who is real good at doctoring, or whatever, did this."

The Man on the Tape — Is it R. Kelly?




  A tour of the Colorado Room  

Kelly insists that the man in the tape is not him, and he claims to be hurt and astonished that anyone could believe that it is. "I'm no guy that would do this," he said. "There are a lot of people out there saying that R. Kelly is a monster, and I just think there are a lot of people out there that are misinformed about who I am... There's a lot of things that I've done in my life that I truly regret, but I'm no criminal."

Can the prosecution prove otherwise? They might attempt to do so by using a "compare-contrast" demonstration: taking images of the singer from the period of time in which the tape was allegedly made and comparing them to the images on the tape. And there are plenty of R. Kelly images to use for this purpose, as he's made an extraordinary number of music videos over the years. There are also some other images of Kelly available to the court: Although he made no Michael Jackson-like complaints at the time, Kelly, too, has been forced to strip and be photographed by the police as part of their investigation.

Another element that could be used to implicate Kelly is the room in which the tape was allegedly filmed. Prosecutors contend it's a very particular room, in the basement level of a Chicago mansion formerly owned by the singer, known as the Colorado Room. It has a distinctive log-cabin motif as well as a hot tub. The prosecution is expected to call not only the mansion's current owners, but also people involved with the design and construction of that room. The new owners of the mansion told MTV News they found video cameras in the Colorado Room, and a special keycard entry system.

The defense may concede that the room in the tape is indeed Kelly's. But they could then argue that it still doesn't prove Kelly is the man in the tape, because other people might have had access to the room. It's possible they may offer up Kelly's younger brother, Carey Kelly, and argue that the two look alike on tape. To that end, a tape of Carey's appearance on a TV show has been subpoenaed for possible compare-contrast purposes. Carey was startled — and not at all happy — to hear about this possible defense strategy.




R. Kelly and Carey Kelly  

Kelly has claimed all along that he's never even seen the Chicago tape, that he doesn't know where it came from, that the whole accusation was just out of left field. That's a harder argument to make if any evidence is introduced from the Florida case, in which Polk County police said they found a digital camera — containing still images of a man they say is Kelly having sex with an underage girl — in the locked bedroom of a house the singer was renting. Kelly was charged with child pornography by Florida authorities, who later had to drop the charges because of a problem with how the search warrants were worded. The challenge for Chicago prosecutors, if they believe the photos could bolster their case, is to get the judge to allow the Florida evidence to be admitted in this trial, even though it wasn't admissible in Florida.

"There will be a battle over what the jury hears or not," Chicago jury consultant Paul Lisnek said. "But we can be sure the jury knows [about the Florida case]."

The Girl — Was She Underage?

People often ask — why hasn't Kelly been charged with statutory rape? That's most likely because child pornography is considered a more heinous crime. Plus, when it comes to statutory-rape charges, it is more effective to have an accuser pointing a finger. In this case, there isn't one: The girl has testified before a Chicago grand jury that she is not the girl on the tape.

But others disagreed — some 50 others. The grand jury heard testimony from 50 people who know the girl and claim that it's her, including teachers, schoolmates and friends — not to mention the girl's aunt, Sparkle, herself a former R. Kelly protégé (In all, the prosecution has a list of some 200 witnesses it wants to call, a number that Kelly's lawyers complain is excessive.)

The prosecution can also submit both photographic and video compare-contrast images, because the girl posed for school yearbook photographs around the time the tape was allegedly made. She also appears in a little-known, professionally shot music video, which MTV News has obtained: She was a member of a fledgling musical group that had a hit single outside the U.S. The clip shows her singing, dancing and standing next to some of her relatives. The prosecution can use this tape to compare her voice, her movements and her body measurements with those of the girl on the Chicago sex tape.

The prosecution will also call sex-abuse experts, who are likely to testify about the common phenomenon of denial in children who have been molested or abused. And to establish that there have been previous claims of Kelly abusing the girl in question, four caseworkers from the Department of Children and Family Services are on the witness list, probably to reveal the yet-undisclosed results of its investigations.

"We've had two investigations into Mr. Kelly and the minor," Chicago DCFS spokeswoman Jill Manuel said. "At least one of the calls was about the tape, before it surfaced. And we have one investigation pending into the family, whether they knew their daughter and R. Kelly had engaged in some activity; whether or not anything inappropriate happened." However, the defense will be sure to point out that the two prior investigations turned up nothing conclusive.

The prosecution also plans to call a top forensic-pediatrics expert, Dr. Sharon Cooper. As a specialist, she might be able to establish the age of the girl on the tape — if the defense contends that the girl looks too old to be 14, she'll state that black girls often develop earlier than other girls do. The defense has already disputed Cooper's proposed testimony, since some of the methods used to approximate age (such as the controversial Tanner Scale) aren't widely accepted by the medical community. They may counter with pediatrics experts of their own.

Of course, the prosecutors could also summon the girl herself. However, since she's already denied that she's the girl on the tape, she may not be helpful on the witness stand. In any event, the defense is likely to argue that the girl on the tape is not the girl in court; and that the girl on the tape was actually older at the time than the prosecution contends she was — and therefore, it would not have been a crime for someone to have sex with her, or to tape sexual acts with her. "There is no videotape of Robert Kelly having sex with an underage girl" has long been the mantra of Kelly's camp.

A Pattern of Behavior?

Does R. Kelly have a predilection for underage girls? There are at least three other women whose testimony could bolster the prosecution's contention that Kelly preys upon young girls, particularly those with show-business aspirations. These women filed civil suits against the singer — each alleging criminal sexual conduct, and each claiming that they met him and had sex with him when they were underage. One even claimed that he coerced her into having an abortion.

All three women settled their cases with Kelly out of court: Tiffany Hawkins for a reported $250,000, Tracy Sampson for a reported $50,000 and Patrice Jones for an unknown amount. In addition, more low-profile claims about Kelly have since been made by four or five other women, and it's possible the singer also may have already settled with these women before they filed suits.

The young women who settled with Kelly all had to sign non-disclosure agreements — which means they agreed not to talk about or disclose details of their cases or settlements. But a court can still compel them to testify. "They are on the witness list," said Chicago attorney Susan E. Loggans, who represented many of the young women who filed civil suits against Kelly. "I'm on the witness list, as well."

However, Loggans feels that her clients might not be very good witnesses for the prosecution.

"Each one of them would be honest and would describe what happened to them," Loggans said. "[But] they were in love with R. Kelly, and they found him to be a very charming, charismatic individual. Rightly or wrongly, they don't want to see him go to jail."

Kelly's lawyers will also be sure to question the girls' credibility — after all, none of them filed criminal charges, and all of them sought money from the singer. That money, they can argue, was offered not out of an admittance of guilt, but rather, to make a nuisance go away. Kelly, who has denied that he has a pattern of seeking out underage girls, told MTV News that he regrets having settled the lawsuits out of court — it makes him appear guilty, he said.

"First of all," Kelly told MTV News in 2002, "If it's just about young girls, that's just not me. Because I'm not … I haven't done that. You suppose if you were innocent about something, [you'd be] ready to fight. But I want people to know that there's a difference when you're famous. I wish I hadn't settled those [suits]. I can't do anything about that now. My lawyers told me that I should settle, because I had a lot of things going on, some hits was out at the time, and it was R. Kelly rising, you know? At the time those people came at me, the lawyers [were saying] it was best for me to not go on with this, because it could mess [me] up career-wise. I regret that. If it was today, I'd fight."




R. Kelly and Aaliyah  

But there's one relationship with an underage girl that Kelly can't dispute. Although prosecutors can't call the late singer Aaliyah to the stand, they can introduce evidence of Kelly's illicit marriage to her in 1994 — when she was 15 years old. To obtain a marriage license, the couple lied about Aaliyah's age. When her parents found out, they had the marriage annulled.

"Aaliyah is gone now," Kelly said. "Out of respect for her, and her mom and her dad, I will not discuss Aaliyah. That was a whole other situation, a whole other time, it was a whole other thing, and I'm sure that people also know that."

Kelly isn't on trial for having or filming sex with any of the girls who've settled with him; even if evidence concerning them were admitted in court, it could only be used for supplementary purposes, to establish a pattern of behavior. Kelly's lawyers are likely to fight the admission of any such evidence, on the ground that it's not relevant to the child-pornography charges he's actually facing. But prosecutors might argue that such evidence is valid, because some of the girls claim that videotaping was also involved in their encounters with Kelly.

"We know they were all taken to his recording studios and there were cameras all over," Loggans said. "I don't think these girls were aware that those cameras were running."

Neither was Montina Woods, or so she alleges. Of all the women who are known to have filed civil suits against Kelly, Woods is the only one not claiming she was underage when she had sex with him. The 35-year-old dancer/actress is concerned about the invasion of her privacy. She alleges that, unknown to her, Kelly taped their sexual encounter and allowed the footage to be taken out of his possession, leading to its inclusion on widely distributed bootleg sex tapes. Woods' case is still pending, but she and her lawyer are also on the witness list. Kelly's lawyers have dismissed her allegations.

"This one falls under the category of people just piling on," Kelly spokesperson Allan Mayer said when she filed. "[Woods] herself says it was consensual. She's a grown woman, not a kid. We're confident that the court will toss this one into the trash, where it belongs."

And When the Gavel Drops?

Of course, no one knows what will happen when the R. Kelly case goes to court. And nobody seems to know when it will go to court, either: Kelly was indicted nearly two years ago, in June of 2002. It's taken more time than Snoop Dogg's 1993-95 accessory-to-murder case took to come to trial (23 months), or Sean "P. Diddy" Combs' 2000-01 attempted-murder case (12 months). And in another Chicago underage-sex case, in 1994-95 involving former Illinois Congressman Mel Reynolds, the pretrial period was only 11 months. So what's the holdup?

Both the prosecution and the defense — with Kelly in tow — have appeared repeatedly, about once a month, before Judge Vincent Gaughan, but the case continues to languish. R. Kelly's career, both in the studio and on tour, have required that his defense team spend considerable time securing the right for their client to travel and earn a living (per the terms of his bond, he needs the court's permission to leave the state).

A perhaps unintended effect of the delays may weigh in Kelly's favor: Attorneys we consulted with point out that the longer the case drags out, the less interested the public becomes in the charges leveled against Kelly, the older the alleged victim becomes, and the less she'll look like the young girl on the tape when she finally does appear in court.




"I am confident that when all the facts come out, people will see that I'm no criminal."  

Although such intangible factors fall outside the nuts and bolts of the case, history has shown that intangibles can be just as influential as concrete evidence. And one can never underestimate the celebrity factor when it comes to jury selection, particularly for a hometown hero. Despite what the prosecution believes is a strong case — it all comes down to the jury.
 
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