CHICAGO — Jury selection in the R. Kelly child-pornography trial began at last on Friday, despite efforts by the defense to delay it further, and it is expected to continue this week. But given the amount of attention this case has received for more than six years, can there possibly be a group of 12 men and women in Chicago who are impartial enough to give the singer a fair trial?
"You either have to say, 'R. Kelly can never get a fair trial here,' or 'R. Kelly can get a fair trial, given the continuing publicity,' " said California defense attorney Steve Cron. "Because when will you ever not have some publicity? It's never going to go away."
Since Kelly is one of Chicago's favorite sons, it's going to be difficult for either side to find anyone unfamiliar with the case. They'd have to be "living under a rock," said Cron, who defended comedian Paula Poundstone on charges of lewd acts on a minor. What they can hope for, however, is to find potential jurors who have not yet made up their mind. Legal experts agree that there really is no such thing as an impartial jury — that every prospective juror brings to the table his or her own biases. The question then becomes: What kind of jurors would each side want? It's not quite as black-and-white as you might think.
"What makes for good TV is if we say, 'We want black,' 'We want white,' 'We want men,' 'We want women,' " Chicago jury consultant and defense attorney Paul Lisnek said. "And those factors do come into play, but what we have to look at is life experience. That's what's going to influence the way they respond to the evidence in the case, not just whether they are of one race or one religion or another. The bottom line is, cases like this trigger certain underlying issues, deep issues about racial prejudice and underage sexual relations."
Which means the defense and prosecution have to go more than skin-deep to find jurors sympathetic to their arguments and witnesses. Still, race will be a factor, given Chicago's makeup, especially in the South Side where the trial will take place.
THE R. KELLY TRIAL: IN BRIEF
"Chicago is a hodgepodge," Lisnek said. "There is a high percentage of minorities here — African-Americans, Hispanics — and R. Kelly can expect to see a fair number, especially at this courthouse, where a good number of minority prospective jurors show up. It is not a courthouse where you get affluent, rich, white folks coming down from the suburbs. Technically, they could be pulled in, but that's not typically the case for who shows up here. I don't mean to stereotype, but this is the part of town where more arrests are being made. So the odds are, you're going to get the parents of somebody who has been arrested. People who have seen violence and police action around their lives and their neighborhoods."
This doesn't automatically work in Kelly's favor. Nor does a jury stacked with more women or men. What matters more is their attitude. Do they think that the police set people up or unfairly target minorities? Or do they believe that those who break the law deserve to be punished? Do they view underage sex as abuse? Or do they think the law prohibiting sex with minors is too strict?
"You're not going to ask that up front," Lisnek said, "because if you're asking a question with a certain socially appropriate answer, such as, 'Is it OK to have sex with a girl who is underage?' the answer is 'No.' You approach things in a way that allows them to answer more freely, so they don't really know what you're going after, such as, 'What are your reactions to situations in which an adult has had sexual relations with a female who is 16? 15? What about 14?' "
"There's been a change of sexual mores," former New York sex crimes prosecutor Linda Fairstein said. "It's easier to view the young girl as a young adult when she's closer in age to the MTV demo, when she's part of a desirable demographic for marketers. That's why the prosecution would benefit from a jury that's older, who have children the age of the alleged victim. A 50-year-old mother of three says, 'This could be my child, and this guy had no business doing that.' "
But parents — like every other demographic — aren't automatically going to side with the prosecution or defense. Their relationships with their own children will affect how they view the alleged victim and whether they feel protective of her, Cron said. How likable and believable the witnesses are — especially Kelly himself — will be a bigger factor.
"Women sometimes, a lot of studies prove, tend to give a break to the celebrity in the box, no matter how heinous the crime," Fairstein said. "Adult males tend to be tougher on men who do this kind of thing than women are. And every jury study in celebrity cases proves that if there are male jurors, even if they grew up knowing, liking, approving of [the celebrity's] career, they are more likely to separate that out and be tougher on him."
"There's almost a resentment towards people who are well off," Lisnek said. "But at other times, people look up to or glamorize celebrity, so you have two potential attitudes coming into play: people who will say, 'Wow, he's a famous music star, and this is just the system going after him,' and other people who will say, 'Wait a minute. Just because he's a celebrity, he thinks he can get away with stuff the average person couldn't.' "
Other factors that determine how jurors are likely to think include how they vote and what media they consume. "All of this can lead to and feed biases and values people hold," Lisnek said. "If somebody tells you, 'I watch Fox News,' you are probably dealing with somebody more conservative. If somebody tells you they watch CNN or MTV, they're perhaps a little more liberal." Fox News jurors are "rule followers," he explained. But CNN or MTV jurors, he said, are "more skeptical, more open."
Both the defense and prosecution need more sophisticated jurors than usual, since this case has so many twists and turns and can become very complicated very fast. "If I'm Kelly's defense lawyer, I want people who are technically savvy," Cron said. "I want people who can understand Photoshop, or how you edit tapes, or who don't just blindly trust the FBI," since the FBI said they authenticated the tape. "And if I'm the prosecutor, I want someone who isn't technophobic, who is fascinated by this, who wants to puzzle it out and put it all together."
Ultimately, a smart jury is Kelly's best bet for a fair trial — no matter how much they've read about the case.
For full coverage of the R. Kelly case, see The R. Kelly Reports.