Jurors in R. Kelly trial dismissed for the day after one is replaced; defense argument to resume Tuesday

Antonio Perez / Chicago Tribune/Chicago Tribune/TNS
·11 min read

CHICAGO — One of the jurors in the federal criminal trial against R. Kelly and two former associates reported she was having a panic attack in the middle of closing arguments Monday and has been excused from the panel.

The juror, a white woman who works for a public library, told courtroom personnel during a break that she “doesn’t think she can go on one minute more” and that waiting overnight would not help, U.S. District Judge Harry Leinenweber said. After a brief discussion, the woman was replaced by an alternate juror, a white man who appeared to be in his 60s.

The development came after about four hours of closing arguments in the case, first from prosecutors and then by the lawyer for Kelly’s former business manager, Derrel McDavid, and former employee Milton “June” Brown.

The judge sent the jury home until 9 a.m. Tuesday, when Kelly’s attorney Jennifer Bonjean will deliver her closing argument, followed by prosecution rebuttal, jury instructions and then deliberations.

Prosecutors began by reminding jurors of their strongest evidence against the singer: The multiple videos they viewed showing Kelly abusing his 14-year-old goddaughter, “Jane.”

“Kelly and his team, they did their level best ... to cover up the fact that Robert Kelly, R. Kelly the R&B superstar, is actually a sexual predator. They did their best, but in the end, they failed,” Assistant U.S. Attorney Elizabeth Pozolo said. “We are here today because those tapes that they concealed for 20 years are no longer their secret. You have seen the tapes. You have seen what Kelly did to Jane.”

Meanwhile, the attorney for Kelly’s co-defendant, Derrel McDavid, told jurors in his closing argument that the prosecution was riddled with reasonable doubt and based on untrustworthy witnesses, and that McDavid had no way of knowing whether Kelly was really sexually abusing minors.

“The man didn’t know,” Brindley said. “They’ve got nothing. ... Their case can’t be trusted.”

Brindley had particular scorn for the testimony of Charles Freeman, whom he called a “talentless tactless T-shirt man” whose testimony about busting into a Georgia home “like Shaft” to recover a sex tape was “just plain stupid.”

“Like (Freeman) if you want, but you can’t believe him because he didn’t act like an honest person and his own words betrayed him as a liar,” Brindley said.

Attorneys began their arguments after four weeks of evidence and testimony, and the presentations promise to be fiery as well as lengthy. Arguments from prosecutors as well as lawyers for Kelly and former associates McDavid and Milton “June” Brown are expected to last all day and could even spill into Tuesday, when jury deliberations are set to begin.

Kelly, McDavid and Brown allegedly worked together to cover up evidence of Kelly’s abuse of Jane, especially while Kelly was facing Cook County child pornography charges for one of the videos at issue in this trial. He was acquitted on those charges, in part because he pressured Jane and her family to lie, according to prosecutors.

Pozolo reminded jurors in explicit detail about what they saw on those videos back during the first week of trial.

“That child, who had no prior sexual experiences in her life, was forced to lay on that floor while that man sitting right over there urinated on her. That degrading act is forever captured on that video,” she said. “That abuse is forever memorialized.”

As she continued, Pozolo walked over to within a few feet of Kelly’s defense table and pointed directly at the singer. “Who does that?” she said. “Who uses a 14-year-old child to film a video like this? This man. Robert Kelly.”

Kelly, seated between his lawyers in a light gray suit and glasses, stared straight ahead during that dramatic moment. Later, as Pozolo detailed the charges against him, he bowed his head and shook it slightly back and forth.

McDavid, meanwhile, has stared straight at Pozolo for much of the argument, sometimes shaking his head or leaning back in his seat with an arm slung over the chair back as she makes particular points about him.

McDavid’s lawyer, Beau Brindley was scheduled to deliver his closing argument after a lunch break.

Near the end of her roughly two-hour argument, Pozolo displayed photos of Jane, and two of the other alleged victims, Pauline, and Brittany, from their young teens on large monitors in the courtroom.

She also reminded jurors of what R. Kelly looked like around the same time, putting up a photo of him wearing sunglasses, his head shaved, singing “I Believe I Can Fly” at the 1998 Grammys.

Prosecutors also anticipated defense attorneys’ attacks on prosecution witness Charles Freeman, who testified that he was paid to recover incriminating video footage at the behest of Kelly and his team.

While the defense has sought to discredit him, prosecutors said, it is the defendants who chose Freeman to do their dirty work in the first place.

“No, they didn’t call an upstanding citizen to get those tapes back, they didn’t go to someone who’s liable to go to police,” Pozolo said. “No, they went to Charles Freeman ... they knew Freeman would do this job for money and he would do it while keeping his mouth shut.”

And while defense attorneys on cross-examination seized on inconsistencies in testimony from Lisa Van Allen, the “core” of her testimony has remained the same for years, Pozolo said.

Van Allen, a sometime girlfriend of Kelly’s, testified she took a tape from Kelly’s gym bag that depicted her and Kelly with an underage “Jane” — and then Kelly’s team offered her hundreds of thousands of dollars to get it back.

Her shame and pain for having had sexual contact with Jane were evident on the stand, prosecutors said.

“Is that the demeanor of someone who wants to be here?” Pozolo asked jurors. “Is that the demeanor of someone seeking money and fame?”

The tape purportedly showing Van Allen, Kelly and Jane has not been shown to jurors. The defense has said that’s because it does not exist, and that Kelly’s team in fact was paying to retrieve a sex tape showing Kelly’s wife. Prosecutors, however, allege that it did show child pornography, but Kelly’s team successfully covered it up.

Both Van Allen and Jane testified about the taped sexual encounter. And McDavid withheld Van Allen’s full payment until after Kelly’s Cook County child pornography trial, Pozolo noted.

“The fact that McDavid withheld $50,000 from Lisa ... shows you Derrel McDavid knew what was on that threesome video. This was not a ‘regular porno’ as def counsel wants to call it,” she said. " ... If it was a regular porno that would embarrass Kelly, they would just pay the money.”

And while Brown was lower on the totem pole, “common sense” points to his full knowledge of Kelly’s abuse of Jane, Pozolo noted.

Travel records show he was in Mexico at the same time as Jane and her family after Kelly paid for them to get out of the country, and shortly afterward he was tasked with driving her to get a tattoo of his name covered up, she said.

And when prosecution witness Keith Murrell arrived with an incriminating tape, Brown told him he had the “golden egg,” Pozolo noted.

“Brown was not some innocent bystander who robotically made hotel reservations and drove people to the airport. Brown knew full well what was going on,” she said.

Prosecutors also anticipated likely defense arguments about “Tracy,” who testified at this trial she was 16 when she first had sexual contact with Kelly. A lawsuit filed in the early 2000s, however, claimed she was 17 — the legal age of consent in Illinois.

But for the criminal charge related to Tracy, Pozolo said, all that matters is whether jurors believe she was under 18 and not 17.

And prosecutors did not call one anticipated complaining witness, “Brittany,” to the stand during trial. But Pozolo reminded jurors that two other witnesses, Jane and “Pauline,” both testified that they had sexual contact with Kelly and Brittany repeatedly when the girls were underage.

In sum, Pozolo said, “Robert Kelly abused many girls over many years. He committed horrible crimes against children. And he didn’t do it alone.”

“All these years later the hidden side of Robert Kelly has come to light,” she said. “The truth has come out.”

Brindley, meanwhile, began his closing argument by saying McDavid was following the guidance of an experience legal team, including criminal defense attorney Edward Genson and longtime entertainment lawyer Gerald Margolis, who would never had staked their careers and reputations to protect child pornography.

“The question I start with is would they ever do that?” Brindley said. “These men, would they ever do that? Does it make sense that all of these men would do that for someone they knew was abusing children? Really?”

Brindley said that the government’s own witnesses contradicted the allegations that McDavid was knowingly participating in a conspiracy, including whether McDavid was even present for a meeting in an Oak Park hotel room where Kelly allegedly fessed up to Jane’s parents about the relationship with their daughter.

“They want Derrel to be in that room. But I’m sorry to say the evidence says he was not,” Brindley said.

Brindley also noted that Jane’s mother, Susan, testified she didn’t believe that payments Kelly made to the family was to buy their silence.

“What is striking is the U.S. government trying to get Derrel McDavid, and in so doing moving away from what their own witnesses said,” Brindley said.

Brindley chose to abandon the lectern and instead stood directly in front of the jury, walking back and forth with a microphone pinned to his lapel. The microphone seemed superfluous, given that Brindley spoke at top volume for most of his presentation.

He argued in the cadence of a preacher, waving his hands and thrusting his fingers in the air to emphasize certain things.

He was accompanied by a brightly colored slideshow that flashed his main points on the screen, often in huge white text on red and yellow backgrounds: “That story is just plain stupid,” one slide stated about Freeman. And on a subsequent slide, just one giant word: “Ridiculous.”

After Brindley wrapped up and returned to the defense table, McDavid took off his glasses, sniffed quietly, and wiped away tears.

The attorney for Milton “June” Brown begins her closing argument by saying prosecutors “failed miserably” at proving Brown knew about any child porn. “If you are wondering why Milton Brown is charged in this case, you are definitely not alone.”

Judge is reminding the jury about prosecutors’ opening statement that Brown helped Kelly hide his “dark side,” saying it’s preposterous, and there was no such evidence. “The government presents a good story, but it’s not true.”

Kelly’s employees were told to stay in their lanes, Judge says, and all the government’s evidence proves is that Brown was doing his job as Kelly’s assistant. “The government has no proof that Milton Brown ever received child pornography,” she says.

“Carrying R. Kelly’s bags, even if they did contain child pornography videos, is not enough if Milton Brown did not know what was on the tapes, and there is no evidence that he did,” Judge says.

The defendants rested their cases Friday afternoon. While prosecutors had hoped to call witnesses in rebuttal — particularly Kelly’s former manager Barry Hankerson — U.S. District Judge Harry Leinenweber said they could not call any witnesses who were not ready to go immediately Friday afternoon.

Leinenweber is “under pressure” to move things along quickly, he said when prosecutors asked to briefly present witnesses Monday. “Either do it today or not.”

Leinenweber also denied prosecutors’ request to prohibit defense attorneys from quoting from trial transcripts during closing arguments.

“Use of transcripts during closing is likely to skew or displace the jurors’ independent recollections of testimony and other evidence at trial, creating a reliance of the portions quoted rather than their memory of the evidence in whole,” they wrote over the weekend.

In a joint response, attorneys for all three defendants shot back, saying such a prohibition “would amount to hiding the truth from the jury and, in turn, usurping them of their truth-seeking function.”

“It has taken over three years, but (it) seems that the government has finally come to the realization that their case is based on the stories of liars, con artists, and extortionists whose word cannot be trusted,” they wrote.

Kelly, 55, faces an indictment charging him with 13 counts of producing and receiving child pornography, enticing minors to engage in criminal sexual activity, and conspiracy to obstruct justice. McDavid and Brown are accused alongside him in an alleged scheme to buy back incriminating sex tapes that had been taken from Kelly’s collection and to hide years of alleged sexual abuse of underage girls.

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