CHICAGO — The judge overseeing R. Kelly’s federal child pornography trial said he will rule Thursday on requests by the disgraced R&B star and his two co-defendants to acquit them of all charges before the jury even gets the case.
The motions for judgment of acquittal, filed at the conclusion of the prosecution’s case on Tuesday, are routine in criminal trials and almost always denied. At the very least, they are meant to preserve issues for a possible appeal down the road.
But U.S. District Judge Harry Leinenweber said before the motions were argued Wednesday that he would not rule immediately, as there were several issues that in his view “deserve consideration.”
Once the motions are decided, all eyes will turn to the defendants, who are scheduled to begin presenting their cases Thursday.
Defense attorneys have so far hinted at an eclectic hodgepodge of potential witnesses, including disgraced attorney Michael Avenatti, former Chicago Sun-Times music critic Jim DeRogatis and the former lead prosecutor on the case, Angel Krull, who exchanged emails with the star witness that defense attorneys suggested were inappropriate.
Attorney Jennifer Bonjean, who is representing Kelly, told the judge Wednesday that she intends to call record company executive Cathy Carroll, who, according to testimony, introduced one of the Kelly’s alleged minor victims to the singer when the teen interned for her in the late 1990s.
Lawyers for Kelly’s former business manager, Derrel McDavid, promised in their opening statement to jurors that he will take the stand in his own defense. His attorney, Beau Brindley, told reporters that testimony will come on Tuesday and “will be substantial.”
Kelly’s attorneys, meanwhile, have been silent on whether the singer will testify, but it would seem to be extremely unlikely given the nature of the charges and the exposure to cross-examination.
“We are still mulling that over,” Bonjean told reporters Wednesday in the lobby of the Dirksen U.S. Courthouse.
In her motion for acquittal filed Tuesday night, Bonjean wrote that the government failed to present sufficient evidence showing the singer “knowingly” coerced his goddaughter into sexually illicit conduct “for the purpose of” producing child pornography.
Bonjean also argued there was no evidence that the graphic videotapes made by Kelly of him allegedly sexually assaulting the girl, who was 14 at the time, “ever left the state of Illinois,” which is one of the elements prosecutors must prove to sustain a conviction on the child pornography counts.
“In fact, it is undisputed that the tapes are copies made by someone, but the government could not establish where the tapes were copied or by whom,” Bonjean wrote. “The government simply did not prove that the tapes were transported in interstate or foreign commerce.”
Regarding other counts of conspiracy and receipt of child pornography, Bonjean said the evidence was lacking. She also brought up a crucial theory of the defense — that the effort by Kelly and McDavid to buy back a sex tape had nothing to do with underage girls, but instead involved Kelly’s then-wife and another adult woman.
“The government’s evidence, even in its best light, failed to show (Kelly) specifically sought to receive child pornography, rather than any embarrassing sex tapes — such as a threesome video involving his ex-wife,” the motion stated.
McDavid’s attorneys argued in their motion that the government’s case had multiple “fatal flaws,” including statute of limitation issues and witnesses who were unreliable and had changed their stories multiple times over the years.
Brindley told the judge Wednesday that there was no conspiracy to obstruct justice after Kelly’s 2008 acquittal on Cook County child pornography charges.
“Once he was acquitted, the entire idea of obstruction of justice was over,” Brindley said. “There was nothing else to obstruct. The object had been achieved.”
He said the government improperly stretched the statute of limitations to bring an indictment three years ago, even though the alleged conduct occurred more than a decade prior. “For the government to say we’re going to charge you now, in 2019, that’s an outrageous thing to do,” he said.
Kelly, 55, is charged with 13 counts of production of child pornography, conspiracy to produce child pornography and conspiracy to obstruct justice.
McDavid and another former Kelly employee, Milton “June” Brown, are charged in an alleged scheme to buy back incriminating sex tapes that had been taken from Kelly’s collection and hide years of alleged sexual abuse of underage girls.
Prosecutors rested their case-in-chief on Tuesday after calling some 25 witnesses over 10 days of testimony, including four women who said that Kelly had sexually abused them when they were underage. A fifth alleged minor victim mentioned in the indictment was not called to testify for reasons that so far have not been explained.
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