Could R&B superstar R. Kelly be the next Bill Cosby: Investigated, charged and convicted of sex crimes?
Maybe. At the moment, it looks possible that Kelly could at least end up like Harvey Weinstein and Kevin Spacey, two men at the top of the #MeToo list of accused sexual predators who have been charged with sexual assault and will soon face trial in New York and Massachusetts respectively.
But it’s not a sure thing that Kelly will end up in the legal dock, say lawyers, for a variety of reasons. Money is one of them.
“You need evidence and that takes a long time to gather and that is especially true when you’re talking about a potential defendant with substantial assets,” says Andrew Stoltmann, a Chicago criminal defense attorney who’s been following the Kelly saga.
Stoltmann believes the on-going Mute R.Kelly boycott and his ever-worsening reputation have put Kelly under financial strain. “But he still has the ability to generate more revenue than the average defendant in a sexual assault case.”
What’s next in the R. Kelly saga, and what is the likelihood of legal action against him? USA TODAY spoke to a variety of lawyers to decode the intricacies of the cases.
What is the story about R. Kelly?
For some two decades, Robert Sylvester Kelly, 52, has faced multiple allegations of sexual abuse of women and girls, including sex with underage girls and accusations that he entrapped scores of female fans in a “sex cult” that cut them off from their families and subjected them to degrading abuse.
“Kelly has been walking through a minefield – and he’s not quite hit a mine yet,” says Stoltmann. “He’s come extremely close. It would be hard to believe that he doesn’t end up like a Weinstein or a Spacey or a Cosby. Kelly is walking down that road.”
Only once has Kelly been accused of a crime. In 2008, prosecutors in Chicago charged Kelly with making a disturbing sex video with a 14-year-old girl. But it wasn’t clear who was in the video and the alleged victim refused to testify at his trial. The jury acquitted him on all counts within hours.
R. Kelly’s attorney says the R&B star never knowingly had sex with a minor, sexually abused any woman or held anyone against their will. (Jan. 11)
Kelly recently hired a new lawyer to speak for him in the wake of the #MuteR.Kelly campaign and the growing number of accusers and fellow music stars speaking out against him. Chicago lawyer Steve Greenbergsays Kelly is innocent and that the allegations against him are all lies and “a whole lot of nothing.”
“No one has ever gone to the police that I’m aware of and accused this man of any wrongdoing and that is because there is no evidence of any wrongdoing,” Greenberg told USA TODAY. “The man is getting destroyed without evidence. It’s awful.”
How has Kelly evaded criminal charges for so long?
It’s not that Kelly has been totally ignored by law enforcement over the years; it’s that police and prosecutors weren’t able to gather the evidence and testimony that would persuade a jury – beyond a shadow of a doubt – to convict him.
“Prosecutors have egg on their face: You have an alleged serial rapist and he’s evaded criminal charges for more than 20 years,” says Stoltmann. “Prosecutors have not been able to bring him down, and that’s embarrassing especially in (Kelly’s hometown of) Chicago.”
What’s new now?
A decade later, outrage about Kelly’s alleged misconduct has reached a crescendo thanks to the dogged efforts of some of Kelly’s “rescued” women and the parents of others still allied to him.
But most of all it’s because of a six-part film aired on Lifetime, “Surviving R. Kelly,” in which scores of women came forward on camera to accuse Kelly of shocking abuse.
Now other media are jumping on the Kelly story: For instance, “Dateline NBC” is airing “Accused: The R. Kelly Story,” an hour-long broadcast on Friday(10 p.m. ET/PT) that features interviews with several women who accuse Kelly of sexual abuse and physical violence.
Tracy Sampson, a former Epic Records intern, told “Dateline” she had a relationship with Kelly that she says started when she was 16 and lasted until she was 18, when she broke it off and accused him of sexual abuse. “I was in love with him,” she says. Kelly denied having sex with her but settled with her out of court for $250,000.
Meanwhile, there’s a daily drumbeat of anti-Kelly stories: Some of his concert dates have been cancelled. Celebrities speak out against him. Music peers distance themselves and condemn their former collaborations. Crusading attorney Gloria Allred holds a press conference with Kelly accusers who are suing him. Protesters demonstrate at his concerts or at his rented Chicago studio, from which he is being evicted. Chicago building inspectors get a court order to enter the building and find code violations.
And, suddenly, prosecutors in Chicago and in Fulton County, Georgia, outside Atlanta, are making moves to open investigations of Kelly.
What is happening in Chicago?
The Cook County State’s Attorney, Kim Foxx, called a press conference last week to to talk about Kelly, calling the testimony by women in the “Surviving R. Kelly” film “sickening.” But first she had to appeal for Kelly accusers and witnesses in Cook County to come forward.
Foxx can’t bring a case without a complaining witness, and even then she has to evaluate an accuser’s story: Is there evidence and how strong is it? If an accuser doesn’t have physical evidence, such as DNA, does she have texts, emails, audio or video? And does the alleged crime fall within the statute of limitations?
A Chicago prosecutor has asked any possible victims or witnesses of alleged abuse by R. Kelly to contact her office. She says the allegations are ‘sickening.’ (Jan. 8)
“Make no mistake, all prosecutions are somewhat politically motivated, especially in the era of the MeToo movement,” says Stoltmann. “Any case against (Kelly) becomes extremely high profile and national. It helps make prosecutors, who have to run as politicians, look like they’re ‘doing something’ even if they’re not.”
What is happening in Fulton County, Georgia?
Fulton County District Attorney Paul Howard Jr isn’t talking about his intentions but others are convinced he’s opened an investigation.
Atlanta-area lawyer Gerald Griggs, represents the parents of Joycelyn Savage, who claim Kelly has made their daughter a “sex slave” (although she denies it). Griggs says Howard’s office called him after “Surviving R. Kelly” aired, seeking contact numbers for some of the women featured in the film.
“All of this (the film) started with information (collected) by my client, Mrs. Savage, who’s been investigating Kelly since 2016,” Griggs told USA TODAY. “Ninety-five percent of why all this is happening now is because of her and her persistence.”
Have the Kelly allegations come up in Georgia previously?
Howard has been aware for at least 18 months of the allegations against Kelly on his patch of Georgia, including an Atlanta suburb called Johns Creek where Kelly rented two homes.
In the summer of 2017, Buzzfeed published “Inside the Pied Piper of R&B’s ‘Cult’ ” by Chicago-based journalist Jim DeRogatis,who’s been pursuing the singer for 17 years.
DeRogatis interviewed relatives of women allegedly living with Kelly in either Johns Creek or Chicago at the time. The parents and others in Kelly’s inner circle claimed the women who live with him are forbidden to contact their families, must ask his permission to go anywhere (even the bathroom) or communicate with anyone, and are required to call him “Daddy.” They also claimed Kelly filmed his sexual encounters with the women.
In 2017, Howard and the Johns Creek police told Atlanta reporters they were not investigating Kelly. Griggs believes the “Surviving R. Kelly” film 18 months later hiked the pressure on the district attorney to do something.
“Because the world saw in that documentary series, in living color, what’s been going on for the last 25 years, including what happened in 2017,” Griggs said. “We want Joycelyn home and we think the involvement of law enforcement will facilitate that so I do not want to second-guess the police at this point.”
Why charge Kelly in 2019 when he wasn’t charged in 2017?
Increased pressure due to the film could be a reason for the new interest by prosecutors, even though that’s not supposed to (and usually doesn’t) have any effect on the decision to prosecute, says Randall Kessler, a former Georgia prosecutor who teaches a class on jury trials as an adjunct professor at Emory University School of Law in Atlanta.
“As to why wasn’t it prosecuted back in 2017, there are many potential answers,” Kessler says. “One reason is that new evidence or witnesses could have surfaced. Or the defendant may have done or said something that can now be used against him, such as similar conduct or an admission made to a friend or third party.”
What crimes could Kelly be charged with?
Griggs says there are a “host” of potential charges, including statutory rape, at least in Georgia.
“False imprisonment, aggravated assault, family-violence battery, kidnapping,” Griggs says. “My feeling, based on my knowledge and practice, if they speak to the witnesses that were in the documentary, they can find sufficient cause. I’ve seen people indicted for far less in Georgia.”
Moreover, he says the Georgia statute of limitations for most sex crimes is four years “so you’ve got two more years to run from 2017.”
If Kelly is charged and there is a trial, Griggs says there’s a good chance prosecutors could introduce evidence of a “pattern of prior bad acts,” or “similar transactions” in Georgia.
Such testimony helped get Bill Cosby convicted of three counts of aggravated indecent assault in Pennsylvania last year. Five women who also accused Cosby of drugging and raping them were allowed to testify against him at his second trial even though their accusations had never been litigated or charged elsewhere.
“I argued against (such testimony) in my last three trials (as a defense attorney) but it always comes in, at least in Fulton County,” Griggs said. “If the DA can show ‘bent of mind’ or ‘course of conduct,’ you can get it in.”
What are the potential problems in prosecuting Kelly?
Joe Habachy, an Atlanta criminal and entertainment lawyer, says sex crimes are tough to prosecute in general because there’s almost never a “smoking gun.”
“There’s usually no forensic evidence,” Habachy says. “In almost every sex case I’ve handled, there isn’t any physical evidence so it really is he-said-she-said, and the case hinges on the veracity of the victim.”
Details can corroborate the accuser’s testimony, such as an email or a video with a date stamp. “If you throw 25 charges (at a defendant) and 23 fall by the wayside, it doesn’t matter if you can convict on one or two. That’s what (prosecutors) bank on.”
Besides lack of physical evidence, Stoltmann says a Kelly defense attorney would likely argue that the alleged crimes are too old to prosecute. “The average juror is going to say: Why wait a year or five years to come forward?” says Stoltmann.
Jurors might also wonder why some of Kelly’s accusers waited until a TV camera was on them to tell their stories, instead of telling police and prosecutors years ago.
“Defense counsel will raise every possible issue in attacking the credibility of the accusers – they’ll say, ‘you’re trying to get money, you refused to talk in 2017,'” says James McGurk, a former assistant U.S. attorney in Illinois who now is a white collar- crime defense attorney.
The defense could also bring in witnesses to impeach the testimony of an accuser. This could be critical for Kelly because there are women in his life who deny they have been abused or treated as a sex slave.
“It’s wrong to attack the victim but the defendant is entitled to a vigorous defense and if that includes attacking the accuser, that’s what they have to do,” McGurk says.
What has changed recently that might make prosecution of Kelly easier?
The #MeToo movement has help alter the attitudes of the public, police and prosecutors towards sexual assault cases. Accusers are viewed more sympathetically, and prosecutors are more willing to press cases that, in the past, they might have declined, says McGurk.
“The zeitgeist has changed, particularly as to prosecutors’ decisions on going forward,” he says. “And it’s also changed for many accusers who would have been extremely reluctant to go after anyone prominent (in the past).”
Habachy says the #MeToo movement has helped increase public awareness of what accusers go through when they allege sexual assault.
“The comfort level has shifted in society and these women feel comfortable coming forward when for years they hadn’t,” says Habachy. “That stuff is contagious, good or bad. From a defense perspective, it makes it harder to convince a jury to acquit him.”
What role will “Surviving R. Kelly” play in a trial?
Nobody thinks the film could be admissible as “evidence.” In fact, it’s doubtful that anyone who saw the film could sit on a jury judging R. Kelly given that the film contains elements that would not be admissible at trial.
“A documentary is not evidence, so the answer would be no, it would not get in,” says Habachy. “And I would argue that it would absolutely keep (someone) off the jury and I would win on that front. You want impartial people reviewing the case because your client’s life is in their hands.”
Read or Share this story: https://www.usatoday.com/story/life/2019/01/18/surviving-r-kelly-could-he-end-up-convicted-like-bill-cosby/2597663002/