Closing Arguments: A Preview

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Closing arguments in the R. Kelly child porn case will give the jurors plenty to think about — sex and celebrity, video technology and dermatology, moles and morphing.

But in a trial that has seen its share of bizarre sideshows, the jury's decision will come down to sorting out a few simple facts, according to legal experts.

“It’s not a complicated case," said Leonard Cavise, a professor at the DePaul University College of Law. "You either thinks it’s her and it’s him [on the tape], or you’re done."

Closing arguments are set to begin Thursday morning at 10 a.m. in the courtroom of Judge Vincent Gaughan, where over the past four weeks jurors have listened to testimony by turns salacious and boring. It is up to the prosecutors and defense lawyers to sort through that testimony and hit the points favorable to their case.

Sam Adam Jr. is expected to do the defense's closing argument, sources said. Both Shauna Boliker and Robert Heilingoetter will likely argue for the prosecution, which gets a chance to rebut the defense's closing argument.

Prosecutors will likely emphasize the numerous witnesses who identified the allegedly underage girl on the tape and identified the man as Kelly, experts said. Those witnesses included relatives of the girl, her childhood friends, even her former basketball coach.

Prosecutors can be expected to argue the videotape is real and not the product of digital fakery — and that a dark spot on the male's back matches a mole on Kelly's back. They might also point out that the background on the tape matches photographs of the "log cabin room" in a North Side house Kelly once owned.

The prosecution will also have to deal with Kelly's celebrity, lawyers said.

"The prosecution’s going to say, 'Just because he’s a famous recording star, the burden of proof is the same'," said defense lawyer Steve Greenberg.

"A crime is a crime. That’s what you have to hit. They’ll for sure say, 'When you took your oath as jurors, you said you’d follow the law. And the law doesn’t say that because R. Kelly is a big star ... he’s entitled to any special treatment'," Greenberg said.

But Kelly's celebrity could also pose a problem, according to Prof. James Carey of Loyola University's Law School. On the one hand, the defense will want to stress that "Kelly is entitled to the same treatment as the rest of us," he said. On the other, "they want to say that his celebrity makes him a target for jealous people."

In the end, the prosecutors have to convince the jury of four blacks and eight whites — nine men and three women — that Kelly produced a sex tape involving a person he knew to be a minor.

The defense has, at times, propounded a theory that the sex tape stemmed from a plot by singer Stephanie "Sparkle" Edwards to extract revenge and money from Kelly. Sparkle contends the girl on the tape is her niece, and prosecutors have built their case on that assumption.

But Carey said Kelly's attorneys should not attempt to explain exactly how the alleged plot worked in their closing arguments. "It's better to allude to it and plant the seed of doubt in the jury's mind," he said, "If you put the whole thing out there, it's easy for jurors to pick holes, plus you give the prosecutors a chance to ridicule your theory."

O. J. Simpson's defense team famously did explain their theory in closing arguments, "but they had a racist cop, Mark Fuhrman, to work with," Carey said. "That isn't the case, here."

The defense team of Ed Genson, Marc Martin, Sam Adam Sr. and Sam Adam Jr. is not likely to limit itself to one theory, legal observers said. "Knowing these guys, they'll attack everything," said one defense lawyer.

They will certainly attack the credibility of the many witnesses who identified the girl on the tape, Greenberg said. They will argue some had their own motives for hurting Kelly, and others knew the girl too long ago to identify her with certainty. For example, prosecution witness Tjada Burnett, a friend of the alleged victim's family, said the girl had braces after the time when the sex tape was made. That recollection seemed to conflict with other evidence.

Other prosecution witnesses will be even easier to tear down. Bennie Edwards Sr., the girl's uncle, said "I don't recall" repeatedly on the stand and made statements about his recent drug arrest that conflicted with police reports. Bennie Edwards Jr. admitted he was "not 100% sure" the girl on the tape was his cousin.

The defense will also point out that no one really knows where the tape came from — a way of saying it might have been digitally manufactured or changed — experts said. At one point, Sam Adam Jr. referenced the movie "Little Man," in which special effects were used to put Marlon Wayans' head on the body of a midget. Thus, the "Little Man Defense" was born.

The "Mole Defense," on the other hand, might not see a reprise in closings, Cavise said. The prosecution's video expert established that the tape showed a dark spot on the man's back, which the expert said corresponds to a mole on Kelly's back.

Sam Jr. said in opening statements that the man on the tape has no mole on his back — and that Kelly does. But when the prosecution's expert testfied again on Tuesday, it became clear the defense expert had testified using a lower-quality copy of the tape. That might have undermined the defense's claim the tape does not show a mole.

Two issues make the case volatile, Cavise said: Sex and celebrity. The tape shows intercourse and oral sex, and it shows the man urinating on the female. The shock factor alone could push the jury to a guilty verdict, experts said.

"You see a real possibility that the jury can go guilty because the tape is so disgusting" and jurors want to punish someone, one legal observer said.

At the same time, Kelly's fame could prejudice the jury in the defense's favor. “Everybody on the jury who likes R. Kelly is going to hold out for him," Cavise said.

Studies show that 80 percent of jurors make up their minds before they have heard any evidence, Cavise said.

"As we go into closing arguments, at least 80 percent of those people have an opinion already," Cavise said.

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R. Kelly on trial


The story of the allegations against R. Kelly started here in the Sun-Times. Almost six years later, it's now finally reached a trial.

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This page contains a single entry by Eric Herman published on June 11, 2008 4:51 PM.

Jurors will get sex tape, VCR was the previous entry in this blog.

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