CHICAGO — High-profile federal conspiracy trials like the one unfolding in Chicago against disgraced R&B singer R. Kelly don’t typically have many made-for-TV bombshells.
By the time the curtain raises, evidentiary issues have largely been worked out. Prosecutors have put forth in detail what they expect their witnesses to say. Defense attorneys have raised their pretrial objections and counterpunch according to the judge’s rulings.
But Kelly’s case hasn’t quite gone by that familiar script.
Instead, there have been several surprises during the two weeks that prosecutors put on their case, which featured 25 witnesses and physical evidence including travel records, private investigator contracts and graphic excerpts of three videotapes purportedly showing Kelly sexually abusing his 14-year-old goddaughter.
Among the more eye-opening developments: One of the five victims that prosecutors told jurors they’d hear from did not testify for reasons so far unexplained. Evidence has shown another minor victim may actually have been legally an adult at the time she met Kelly. And several details laid out in a pretrial prosecution filing describing the expected testimony were either changed or missing altogether when the witnesses were put under oath.
But perhaps the biggest surprise came when a key witness tying Kelly and two co-defendants to an alleged conspiracy to buy back sex tapes told the jury last week that the videotape he was given by former Kelly girlfriend Lisa Van Allen appeared to be a threesome between consenting adults, not child pornography.
To be sure, the possibility of an outright acquittal for Kelly is likely very remote. Prosecutors presented plenty of evidence over the past several weeks that will be extremely difficult for the singer to overcome, particularly when it comes to the witness “Jane,” Kelly’s goddaughter, who testified that she was the girl on the infamous Kelly videotape from the late 1990s.
Not only has the jury heard from Jane, who came forward after two decades of denying any sexual relations with Kelly, but the panel has also been shown 17 snippets of video allegedly depicting Kelly sexually abusing her, with the R&B star directing her to call him “Daddy” and referring to her “14-year-old” genitalia.
Other counts against Kelly that appear strong include allegations that he sexually abused Jane’s best friend, “Pauline,” who testified she had sexual contact with the singer dozens — if not hundreds — of times when she was underage, including numerous threesomes that he videotaped.
Another alleged victim, “Nia,” testified Kelly flew her to Minneapolis in 1996, when she was 15, and sexually abused her in a hotel room, then had inappropriate sexual contact with her again at his recording studio in Chicago that summer.
A missing witness
If Kelly is convicted on just the counts involving Jane, Pauline and Nia, it would be enough to potentially send him to prison for decades.
But when the jury begins its deliberations sometime next week, they’ll be asked to consider one count involving a victim, “Brittany,” who was never called to testify. Instead, jurors will have to rely on under-oath testimony about Brittany from other witnesses in order to decide if prosecutors have met their burden.
Jane testified early in the trial that Kelly engaged her in threesomes with Brittany between five and 10 times. The first time, Jane was about 15 years old, and Brittany was slightly older, Jane testified. The two girls fell out of friendship when Jane learned that Brittany was also seeing Kelly separately, she testified.
Pauline, meanwhile, told the jury that Kelly also had threesomes with her and Brittany when Pauline was 15 or 16, and said Brittany is about a year older than her. Pauline said that when she was 20, she called Kelly’s business posing as Brittany and threatened to go public about some wrongdoing if he didn’t give her money.
“Well, he called it extortion,” Pauline told the jury. “I called it ‘don’t play with me.’ ”
Prosecutors also have had a difficult time getting around conflicting evidence about the age of another accuser, “Tracy,” at the time she said she started having a sexual relationship with Kelly.
Tracy testified that she encountered the singer at an expo at McCormick Place in 1999, when she was 16, a story backed up by her friend, Kelly Adams, who told the jury she was there at the event, the Expo for Today’s Black Woman.
Prosecutors also showed the jury school records confirming Tracy had graduated from Rich East High School in Park Forest when she was 16, which would match up with the time she said she began interning for a record company executive in charge of promoting Kelly’s label.
On cross-examination, however, Kelly’s attorneys showed both Tracy and Adams sworn statements they made as part of lawsuit Tracy filed against Kelly saying that the expo was actually in 2000, when Tracy would have been 17, which is the age of consent under Illinois law.
That evidence was bolstered last week, when Kelly’s legal team called to the stand Merry Green, who was involved in planning the expo in the late 1990s and early 2000s.
Green said Kelly made a promotional appearance at the 2000 expo, not the 1999 event. Green brought with her a printed-out photo of Kelly at the event in 2000, wearing a black hat and smiling as he signed an autograph for a female fan.
Conflicting testimony
Kelly, 55, is charged with 13 counts of producing and receiving child pornography, enticing minors to engage in criminal sexual activity and conspiracy to obstruct justice.
Also on trial are former Kelly associates Derrel McDavid and Milton “June” Brown, who, according to the indictment, schemed to buy back incriminating sex tapes that had been taken from Kelly’s collection and hide years of alleged sexual abuse of underage girls.
The conspiracy charges have been by far the most difficult for prosecutors to prove up, in part because the alleged scheme stretches back some 20 years, leading to faded memories and statements by witnesses over the years that seem to conflict.
Another problem for prosecutors are the witnesses themselves, a cast of colorful characters that defense attorneys have sought to portray as admitted liars and profiteers.
Van Allen testified that in the late 1990s, she had sexual contact with Kelly and Jane at the behest of the singer, who also filmed and directed their encounters. After she took one of the tapes and sent it to a friend in Kansas City, Kelly offered her $250,000 to get it back, she said.
When her friend, Keith Murrell, took the witness stand, however, he contradicted Van Allen on several important points, including why she sent him the tape, the number of sexual encounters it depicted and whether money was the motivating factor for returning it to Kelly.
Murrell made a surprise disclosure when he acknowledged on cross-examination by McDavid’s attorney that he’d asked Van Allen to send him the tape because he wanted to see it — even though she’d said she told him only to hold onto it for her.
“I was excited to have the tape, for one, because it was Lisa on there and also Robert Kelly,” Murrell testified. He then stunned everyone in the courtroom by testifying on cross-examination that when he watched the tape, it appeared to involve another adult woman, not an underage girl.
“It just looked like a threesome to me,” he said.
And there was only one sexual encounter on the tape, Murrell said — whereas Van Allen has testified there were three separate scenes, two of which involved just Kelly and his young goddaughter.
Off the script
A month before jury selection began, prosecutors filed what is known as a Santiago proffer — an extensive preview of what alleged co-conspirators are expected to say on the witness stand. Usually the document, which is required under the law, tracks closely with what witnesses wind up saying before the jury.
In this case, however, there have been an unusual number of eyebrow-raising discrepancies.
For one, Kelly accuser Tracy was expected to give potentially damning testimony against Brown, a longtime employee of Kelly’s who is charged with one conspiracy count. In the Santiago proffer, prosecutors said Tracy would testify about a time Brown told her Kelly wanted her to get a hotel room and wait for him there. She told Brown she was only 16 and could not reserve a room herself, according to the proffer, so instead she went to pick up the room key at Kelly’s studio.
When she took the witness stand on Monday, however, Tracy did not mention that anecdote at all, seemingly weakening the largely circumstantial case against Brown.
In addition, prosecutors said in their pretrial proffer they would introduce several business records from now-deceased private investigator Jack Palladino, an effort to corroborate witness Charles Freeman’s testimony that he met with Palladino and McDavid in 2001 to coordinate the recovery of incriminating video footage.
Prosecutors never introduced that paperwork during their case – and now, McDavid’s attorneys want to introduce some of Palladino’s other business records in hopes that they’ll paint Freeman as a lying extortionist. U.S. District Judge Harry Leinenweber, who is overseeing the case, has not yet ruled on whether those records can be shown to the jury.
Some of the most significant differences between the prosecution proffer and the actual testimony relate to Freeman himself. Freeman is central to prosecutors’ allegations of a wide-ranging conspiracy to seek out and cover up potentially incriminating videotapes. His testimony in the second week of trial, while dramatic and memorable, showed that he has given several different accounts of the story, some of which contradict each other.
And some of his testimony at trial differed from what was previewed in the Santiago proffer. For instance, prosecutors asserted that Freeman would say he was offered money to recover two separate videotapes during an initial meeting with Palladino and McDavid: one, from Van Allen for $100,000, and a separate tape in a different location, for $1 million.
On the stand, however, Freeman’s testimony about that meeting gave details about only one agreement for $1 million to recover video footage in Georgia.
“Derrel said it was a performance tape they really needed to recover, and if I would recover the tape they would take care of me, those were his exact words,” Freeman said. “They asked me what would I charge to recover the stolen tapes and I just threw (out) the number — I said a million dollars.”
Prosecutors also previewed testimony about a dramatic sequence of events after Freeman got the tape that differed significantly from Freeman’s actual statements on the stand.
According to prosecutors, Freeman was expected to say that he admitted to making copies of the video but refused to take a lie-detector test, which led to a contentious exchange where McDavid and Palladino called him an extortionist and told him he could get in trouble for possessing child pornography.
Later on, Kelly called Freeman and asked him to smooth things over so Freeman could get paid, according to the proffer. Freeman was expected to say that not long afterward he met with Kelly, McDavid and Brown at Kelly’s studio, where Kelly told him something along the lines of “my life is on the line” because he was being investigated for an interest in teenage girls. Then Freeman agreed to turn over one of the copies he had made of the tape, he was expected to say.
But Freeman never mentioned any of that on the witness stand.
Instead, Freeman’s testimony apparently skipped ahead in time to other matters that had been previewed in the proffer: He ultimately passed a polygraph test, then afterward met with McDavid and Palladino in a hotel suite since they told him they knew he had kept a copy of the tape, he said.
When they showed him two brown bags full of money, he handed over the tape, he testified during trial, saying he took the copy from “between my pants and my buttcheeks … and handed it directly to Jack Palladino.”
“I counted the money getting on the elevator going down. $75,000. All cash,” Freeman said.
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