Race reared its head repeatedly during jury selection last week, with the defense accusing the state of trying to remove as many black jurors as possible.
The state, in turn, pointed out that the defense had used all of its strikes against white potential jurors.
Many observers believed the selection of eight whites and four blacks to serve on the final jury made it less likely Kelly would be acquitted.
But now that the defense has today made explicit its claim that it isn't Kelly on the tape at the center of the case, there is one way in which the majority white jury could work in Kelly's favor.
Studies have consistently shown that witnesses struggle to accurately identify suspects where the suspect belongs to a different racial group. Specifically, white witnesses are far more likely to misidentify black suspects than they are white suspects.
The emergence of DNA testing has in recent years cast doubt on many convictions based on such cross-racial eye-witness accounts. According to the Innocence Project, more than a third of all prisoners exonerated as a result of DNA evidence were convicted as a result of faulty cross-racial witness identifications. Historically, African-Americans have been on the receiving end of these miscarriages of justice.
But Kelly could gain, whether it's him on the tape or not.
In this case, there are no direct eye-witnesses to the scene on the tape. Jurors have seen the tape and it's up to them to decide if it shows Kelly and the underage girl the state says is the victim.
According to this theory, if it's not him on the tape, the African-American jurors would be more likely to recognize that fact. And even if it is him, the white jurors might struggle to make a positive ID.
Remember, the state has to prove it's Kelly beyond a reasonable doubt — and if just one juror finds Kelly not guilty, we'll have a mistrial.
It's just a theory. And I've said before, predictions are a mug's game, particularly at such an early stage in the trial.
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