Day 1: Unveiling the "Shaggy Defense"

Dispatches From the R. Kelly Trial

Day 1: Unveiling the "Shaggy Defense"

Dispatches From the R. Kelly Trial

Day 1: Unveiling the "Shaggy Defense"
Notes from different corners of the world.
May 21 2008 10:32 AM

Dispatches From the R. Kelly Trial


Click on the audio player below to hear Josh Levin read this entry. You can also download the audio file here.

Josh Levin Josh Levin

Josh Levin is Slate’s editorial director.

R&B singer R. Kelly
R. Kelly 

As R. Kelly's child pornography trial is about to start, the judge's media liaison gathers all of the reporters together to announce that we'll be watching a sex tape in open court. He then delivers stern advice about doodling. "I am here to warn you," says Terry Sullivan, "that anyone who draws a depiction or a simulation can be committing the act of child pornography. … You don't want to be doing that." Since I have the artistic skills of someone with no hands, this isn't much of a setback. The courtroom sketch artists, naturally, are more concerned. One of them asks if she can avoid prosecution by doing something "free form." I have no idea what she's contemplating, but I hope she remembered to pack a urine-colored pencil.


A little bit after 1 p.m., the blinds are drawn and the lights go down. For the jury, there's a giant screen on wheels in front of the jury box. For the press, there's a Sony flat screen, lashed to an A/V cart with thick orange straps as if it's a flight risk. The VHS tape starts to roll, and the first voice I hear belongs to Hall of Fame Baltimore Orioles pitcher Jim Palmer, the one-time spokesman for the Money Store. As Palmer explains how you can easily lower your monthly payments, a guy with a shaved head who looks a lot like R. Kelly hands a young woman a folded-up stack of cash. "Thank you," she says softly. He pulls down his pants. Fellatio ensues. A few seconds later, a sitcom laugh track kicks up. He goes off-camera and turns off the television, perhaps fearing that canned laughter isn't an appropriate backing track for a taped sexual performance.

The prosecution's case hinges on Kelly's auteurship. In her opening statement, prosecutor Shauna Boliker argues that he "choreographed, produced, and starred in" the nearly 27-minute video. Kelly denies the video is his work. Whoever the videographer may be, his style is utilitarian. The image is bright and clear, and the director-star occasionally steps out of the picture to make sure the shot is framed properly, or to zoom in on an essential detail—say, the girl urinating on a tile floor. The choreography is also straightforward. The girl gyrates her hips from side to side like an exotic dancer; he moans lasciviously and orders her to move faster. The filmmaker's creativity comes through more clearly in the set design. The action takes place in what the prosecution says is the basement of Kelly's former home, a room that looks a lot like a log cabin—there is a handful of tall, green potted plants, and the walls appear to be fashioned from gigantic felled trees. No longer will I have to wonder what an Abe Lincoln sex tape might have looked like.

Kelly's lawyers tried, exhaustively but futilely, to prevent the jury from seeing the video. This is understandable—when you're defending an accused child pornographer, it's best not to have the jury hear a man who looks just like your client refer to himself, on tape, as "daddy" as he begins to have intercourse with the alleged victim. (The girl's answer when he asks her to initiate sex: "Yes, Daddy.") There's also the matter of his prolonged urination on the girl's face and breasts, which stops and starts, and stops and starts, for what seems like minutes on end. It's excruciating to watch.

Before the tape started rolling, I thought that a few people might have to leave the courtroom. The vibe in the room, though, is more uncomfortable than appalled, like we've all been dragooned into watching Porky's Revenge at grandma's house. Aside from one guy who occasionally breaks into a nervous smile, the jury is stone-faced and intent on the big screen. The two obvious Kelly fans in the room—a pair of young girls who've scored visitors' passes—watch with their hands in their pockets and slightly downturned mouths. Kelly, wearing a dark pinstripe suit and a blue tie with diagonal orange stripes, his hair immaculately braided, tilts his head every so often, putting his chin on his hand to peer at the video from a different angle.


If the defense is to be believed, Kelly is looking at someone other than himself. In the defense's opening statement, Sam Adam Jr. proclaims, "Robert Kelly is not on that tape." I predict that in the decades to come, law schools will teach this as the "Shaggy defense." You allege that I was caught on camera, butt naked, banging on the log cabin floor? It wasn't me.

Considering that the mystery VHS man and R. Kelly look exactly alike, this is not an easy argument to make. But if anyone on the defense team can make the Shaggy defense work, it's the stout, bombastic Adam Jr. Compared with Kelly's other lawyers—including Adam's Uncle Fester-looking father, Sam Adam Sr., and lead attorney Edward Genson, who shambles about the courtroom with a cane on account of a neuromuscular disease—Adam Jr. has the benefit of youthful exuberance. Adam Jr. displays a photo of a shirtless Kelly, pointing to a "significant mole" on his back, a mole, he claims, that mystery VHS man does not have. Either that's not R. Kelly on the tape, he shouts, or Kelly is capable of spontaneously producing moles, "like David Copperfield!" (The mole in the photo, which the defense sometimes calls a birthmark, looks a bit like it was applied with black Magic Marker. Is that David Copperfield's secret?) Unfortunately, the judge does not permit Adam Jr. to show a still from the video during opening statements, and the video screen is too far away for me to do a rigorous mole analysis.

Proving that R. Kelly is mystery VHS man will be the prosecution's easiest task. It'll be harder to prove the identity of mystery VHS girl. The alleged victim, you see, says it's not her on the tape, either, and she won't testify against Kelly. "If she's not here for you to see her, for you to hear her … there's one reason for that," Adam Jr. says. "It's not her on that tape."

After the first day, it's hard to avoid thinking that the prosecution is building a roundabout case. Rather than have the alleged victim say she's a victim, the state will have the girl's relatives identify her. And rather than charge Kelly with statutory rape or sexual abuse, they're trying him as a child pornographer. The facts of this particular case don't come close to speaking to the nature and magnitude of Kelly's alleged crimes.


In the last decade, there have been at least 11 separate accusations that Kelly had sex with someone underage. He has paid settlements to at least four girls who accused him of sexual misconduct. He married the now-deceased R&B ingénue Aaliyah Haughton when she was 15; her parents had the marriage annulled immediately. (For all the sordid details, settle in with Bill Wyman's indispensable R. Kelly SexFacts.)

In hearings closed to the press, the prosecution petitioned to present evidence of all these alleged misdeeds. On the basis of today's proceedings, Judge Vincent Gaughan seems to have ruled that none of them is fair game. The first clue comes when Dan Everett, the now-retired Chicago police detective who first received the tape from a reporter at the Chicago Sun-Times, says that he recognized mystery VHS girl from a previous investigation. Gaughan tells the jury to leave the room, then announces that he might declare a mistrial. Investigation, it seems, is the courtroom's secret word, and not in a fun, balloons-falling-from-the-ceiling sort of way.

The judge, who served as an officer at Vietnam, isn't so good at hiding disdain for his inferiors. He's furious at "this retired detective" because everyone had agreed that Everett would say he knew the girl from a previous "interview" rather than an "investigation." This word game was designed to get around having to reveal to the jury that the Chicago police had been investigating Kelly's relationship with the girl for 14 months before the appearance of a video tape. "It's an egregious mistake," Gaughan says, rocking back in his chair, but he decides not to declare a mistrial. It's been six years since this tape came to light, and after a litany of delays—Kelly's burst appendix, the prosecutor's pregnancy, Gaughan's own tumble from a ladder—the judge isn't going to let a marble-mouthed cop keep this trial from finally getting under way.

Though it's not allowed inside the courtroom, evidence regarding Kelly's mysterious power over young women is in abundance outside. Kelly doesn't have a Michael Jackson-caliber rainbow coalition of superfan weirdos. Rather, the R&B lothario's courthouse supporters are from a more uniform demographic: teenage African-American girls. As he steps into the fifth-floor hallway for a lunch break, four female fans scream in ecstasy and pull out camera phones—contraband inside the courthouse—and unashamedly snap away. When admonished by a bailiff for making so much noise, one member of the group says, incredulous, "How are we supposed to act when R. Kelly come?" Once we're all outside, the Kelly-loving gaggle approaches me. They want to know how another fan scored entry backstage, aka the courtroom. "I'm gonna knock that girl out and take her pass," one of them says.