R. Kelly’s attorneys attacked his accusers. It backfired on him.
Halfway through singer R. Kelly’s trial in Brooklyn, during a conversation away from the jury, one of Mr. Kelly’s attorneys referred to an accuser’s suggestive dance.
The lawyer, Deveraux L. Cannick, had returned to the subject of twerking more than once, as he interviewed a woman who had first met Mr Kelly at a music festival at the age of 17-year-old and said he had abused her for years, and Judge Ann M Donnelly had heard enough.
“You have to go here in 2021 with the rest of us, okay? Judge Donnelly said, criticizing the implication that dancing at a concert was somehow an invitation to sexual abuse.
Mr Kelly’s case, which ended with his conviction this week for racketeering and sex trafficking, has been widely seen as a critical moment in the #MeToo movement, which seeks to hold powerful men accountable for sexual misconduct . But throughout his trial, Mr Kelly’s legal team appeared to employ tactics reminiscent of an earlier era, attempting to portray the multitude of accusers who testified as jealous liars, seeking fame and promiscuity.
Legal experts said the verdict, delivered after brief deliberation despite weeks of complex testimony, underscored a profound and recent change in the way juries have approached cases involving accusations of sexual abuse. And while reducing an accuser’s credibility has long been a key part of defense strategy, they said, attacking women who testify against their accusers risks losing jurors altogether.
“The defense arguments may have had an impact decades ago, but in Brooklyn in 2021 you can’t just say ‘she was asking’ and get an acquittal,” said Moira Penza, a former prosecutor. who led the team that secured the racketeering conviction of Nxivm sex cult leader Keith Raniere.
Ms. Penza called many of the defense cross-examinations of the accusers “offensive” and said the defense had failed on a fundamental level.
“Rule # 1 for being a litigator is to have a clear narrative and consistent themes that you generate throughout your case,” said Ms. Penza, who is now a partner at Wilkinson Stekloff. “Here, the defense does not appear to have had a clear strategy on how to respond to the prosecution’s evidence.”
Certainly, Mr. Kelly’s defense team faced an uphill battle. The singer, once one of the world’s best-known artists, had been accused of sexual abuse for decades. At the trial, nine women and two men shared hours of explicit testimony about the physical, sexual and emotional abuse he inflicted that could not be easily explained.
Jurors saw hours of homemade pornography of Mr. Kelly, most of which was blatantly abusive. In one video, a woman who testified was forced to stand naked and scold herself; in another, she was forced to record herself wading in her own urine and defecating on herself while Frank Sinatra’s “Come Fly with Me” played in the background.
The deliberations lasted only nine hours.
“When jurors hear weeks of complicated evidence and swiftly hand down a conviction, they send a message,” said Paul Butler, a former federal prosecutor who is now a professor at the Georgetown University Law Center.
Given the mountain of evidence against the singer, whose full name is Robert Sylvester Kelly, the case would have been difficult to win. But legal experts have said that Mr Kelly’s defense team – a group of four defense attorneys who had partially formed in the months leading up to the trial after Mr Kelly separated from his long-standing lawyer date – had clearly made some missteps.
Nicole Blank Becker, a Michigan lawyer who had never argued in a federal courtroom before, fumbled several times as she delivered a lengthy argument in Mr Kelly’s case.
And while Mr. Cannick conducted aggressive cross-examinations of several of Mr. Kelly’s accusers, it was not clear how effective his questions were.
“I felt like his questions were carrying,” said a woman who testified under the pseudonym Angela about her cross-examination, in an interview the day after the verdict. “You cannot defend when you have no defense.”
Mr. Cannick also made a bombastic closing argument that at one point appeared to compare Mr. Kelly – who jurors had just heard described as a purple sexual predator – to Martin Luther King Jr.
After the verdict, Mr Cannick told reporters he referred to Dr King in all of his summaries. But that in Mr. Kelly’s case has been ridiculed on social media and by legal experts.
“The defense should be ashamed to even mention the name of Reverend Martin Luther King, Jr., in any discussion of R. Kelly, a dangerous sexual predator who has harmed so many underage women and girls,” said the Attorney Gloria Allred, who represented five of Mr Kelly’s accusers, four of whom have testified, said at a press conference after the verdict.
Ms. Blank Becker declined to comment on the defense team’s strategy before sentencing. Mr. Cannick did not respond to repeated requests for comment.
“In this trial, there was not the historical baggage of false accusations by white women against black men,” Mr. Butler said. “It might have been more effective in a case with a different racial dynamic or at a time before #MeToo, but obviously it didn’t work this time around.”
From start to finish, legal experts said, the defense focused on an ill-conceived plan to discredit Mr Kelly’s accusers instead of attacking the foundations of the unusual racketeering charge he faced. .
The charge is often associated with organized crime, but it can be applied to any ongoing coordinated illegal plan or any criminal enterprise aimed at pursuing a common goal. In that case, prosecutors said Mr Kelly and his entourage have worked for decades in several states to recruit girls and young women for the purpose of sexual exploitation.
Michael Leonard, a Chicago attorney who represented Kelly until this summer, said he was preparing a different defense strategy before he and fellow attorney Steve Greenberg left the case.
“The best way to attack the government case was not to treat it like a mundane sexual affair, arguing whether something happened or not,” Mr. Leonard said. “The government’s Achilles heel was the idea that Mr. Kelly – as the leader of a gang – was a criminal enterprise. It was completely new, something that had never been tried before, and we thought it could be exploited.
Mr. Greenberg, who tweeted, “Sometimes you can’t save someone from themselves no matter how hard you try,” said shortly before leaving the legal team, as one of the many disagreements he has had with the lawyers who remained involved concerned what he described as a strategy problem of blaming the woman.
“Their strategy was to shame bitches, which had nothing to do with anything,” he said. “And it didn’t do you any good. Talking badly about people has nothing to do with having a business.
Mr Butler, who specializes in the intersection of race and law, said Mr Kelly’s team might have hoped their strategy would have worked in a case where the accusers were predominantly black women. He said the strategy might have been more likely to influence some jurors in the years leading up to the #MeToo movement, which he said was started by a black woman.
He also noted that two of Mr Kelly’s accusers were male, which may have helped convince jurors to convict.
“It is unfortunate that we still have to think about the men who corroborate the allegations of victimization of women,” he said. “But in this case, the men were also victims.”
With the burden of proof on the prosecution, the defense called only a handful of witnesses. But those who stood up for the defense may have done more harm than good, experts said.
A witness, a former Chicago police officer, admitted at the stand that he pleaded guilty to forgery. Another, Mr Kelly’s former accountant, admitted that he had created a diagram depicting Mr Kelly’s organization as an octopus with the singer controlling his various tentacles – valuable evidence for the accusation that Mr. Kelly was running an illegal business.
Moe Fodeman, who has pursued numerous racketeering cases as a federal prosecutor and is now a white-collar defense attorney, said the defense decision to call witnesses was risky.
“Having only a few defense witnesses who respond to certain aspects of the prosecution case may risk highlighting the lack of response to the rest,” Fodeman said. He added that jurors are often struck by “the stark contrast to the large number of witnesses the government has called”.
In the case of Mr. Kelly, five people testified for the defense. The prosecution called 45. Mr. Kelly, who also faces charges in Illinois and Minnesota, will be sentenced in May.