It's supposed to be a slam-dunk case against the R&B star, accused of multiple sex crimes. Has the Smollett fiasco changed the calculus? And what about the arrest on federal charges of a key player in the case against Kelly?
"This case is going to crumble," Kelly's Chicago attorney, Steve Greenberg, told USA TODAY.
Kelly, 52,is being prosecuted by Cook County State's Attorney Kim Foxx, in what will be his second round with county prosecutors after being acquitted of child-porn charges in Chicago in 2008.
Prosecutors have four accusers who could testify against him. They have at least one video tape allegedly showing him having sex with a 14-year-old. They have shirts with DNA evidence saved by accusers; one was saved for 10 years, the other for 16 years, although it's not clear under what conditions they were preserved.
But now it's Foxx and her team who are embarrassed and on the defensive: They've been trashed in public by Mayor Rahm Emanuel, Police Superintendent Eddie Johnson, police union leaders and scores of shocked citizens for blowing up the Smollett case Tuesday by dropping 16 charges of lying to police about being the victim of a hate-crime attack.
"It's a whitewash of justice," Emanuel fumed at a press conference.
President Trump also stepped into the fray: He tweeted early Thursday that the FBI and the Department of Justice will "review the outrageous Jussie Smollett case in Chicago. It is an embarrassment to our Nation!" (The FBI in Chicago declined to comment.)
Initially, Foxx and company could say very little in public to defend themselves about why they did what they did, in part because most of the evidence and records of the case have been sealed. But after all the pushback, Foxx, who recused herself from the Smollett case after contacts with his family, told CBS 2 TV and the Chicago Tribunethat she believed the matter was handled properly, with "an outcome that we could expect with this type of case."
Tandra Simonton, a spokeswoman for Foxx, told USA TODAY she would have no comment on the Kelly case.
The resulting confusion has allowed "Empire" star Smollett, 36, and his lawyers to claim he's innocent and was exonerated when in fact that is not the case.
The shambles was not a good picture for the criminal justice system in Chicago, especially the police, after decades of criticism for its treatment of the city’s sizable African-American community. Both Smollett and Kelly are African American, as are Foxx and police chief Johnson.
Adam Citron, a former New York prosecutor turned defense attorney, was one of many legal professionals shaking their heads about the impact on Foxx and her team. "She was undermined – in my mind, her credibility is completely shot," Citron told USA TODAY. "The entire state prosecutors' office in Chicago is tarnished."
Eric Sussman, a partner in the prominent Chicago law firm Reed Smith and a former second-in-command to Foxx, says Foxx has shown "poor judgment" in both the Smollett case and in the Kelly case – and he predicts it will be a major issue of the Kelly defense strategy.
Soon after watching "Surviving R. Kelly" in February, Foxx called a press conference in Chicago and urged potential victims and witnesses to contact her so she could build a case against Kelly, who at that point was an "uncharged private citizen," Sussman says.
"If he were charged that would be one thing but for a prosecutor to go on TV and a make statements soliciting someone to come forward to bring charges - she had no basis to be out there fishing for information," Sussman says. "To make those kinds of extrajudicial statements really crosses the line," he said, because it's a serious threat to assembling an unprejudiced jury and thus to Kelly's right to a fair trial.
Greenberg thinks Foxx was pushed by the "Surviving R. Kelly" film and by "carnival barker" Avenatti into filing charges against Kelly based on years-old allegations, some of which had already been rejected by earlier prosecutors. He plans to submit motions in court on Monday demanding to see all communications between Avenatti and Foxx's office, hoping to challenge some of the evidence against Kelly.
"Avenatti picked Kelly because he thought he was low-hanging fruit, the documentary had come out and Kelly was vulnerable," Greenberg says. "I don’t think prosecutors here did any independent investigation of anything – they just looked at old reports and succumbed to the pressure from what turned out to be a carnival barker."
Greenberg has been poking sharp fun of Avenatti on Twitter for two days, at one point even offering his legal services "since I heard he needs a good lawyer."
Because I don’t hold grudges I am happy to offer #Avenatti My legal assistance since I hear he needs a good lawyer
Still, Citron is convinced the case against Kelly is strong and that Foxx can pull off a conviction on some or all of the 10 counts of aggravated criminal sexual abuse against him. And he's not alone in this view.
Cheryl Bader, a practicing lawyer and clinical associate law professor at Fordham University in New York, says prosecutors traditionally go into court with the advantage of being "cloaked with credibility," because jurors tend to believe at the outset they have a good reason for bringing a case.
Now Foxx and her team are widely perceived to have allowed "a complete debacle of prosecutorial discretion" in the Smollett case, Bader says.
"They might be going into the courtroom having lost that cloak," she says. "It's not ideal... but ultimately I think a jury will look at the Kelly case on its own merits. Even if (prosecutors) don’t have the usual advantage, it doesn't necessarily mean they can't win."
The Kelly defense also has options to challenge the evidence against him, including the video and the DNA evidence. The video, for instance, raises chain-of-custody questions: Where has it been all these years and how did Avenatti find it? Will he have to take the stand to testify about it?
"There's a chain-of-custody issue even without Avenatti," Greenberg says.
The video will be tested to see if it's been tampered with, Citron predicts. "If prosecutors can prove it’s a genuine video, it can get in at trial," he says. Whatever Avenatti's motives or legal woes, it's an irrelevant "collateral" issue at trial. "If prosecutors have other evidence of other instances (of alleged crimes), it’s the cumulative effect of all the evidence together that matters."
Avenatti did not return a message from USA TODAY, but he appeared on CBS Newson Wednesday to declare his innocence in the extortion case, calling the charges against him "absurd." He admitted to being nervous that a conviction could land him in prison for decades – which is what he'd like to see happen to Kelly.
Gerald Griggs, an Atlanta attorney who represents the parents of one of Kelly's live-in girlfriends, downplayed the effect of the Avenatti arrest on the Kelly case immediately after the news broke Monday. Griggs' clients believe their daughter is being held against her will as a Kelly "sex slave" (although she denies it), and they are prominent in "Surviving R. Kelly" as leaders of the effort to take down Kelly.
“The effect (of the arrest) against the R. Kelly case will be minimal as the 10 charges are based on four independent accusers and other information independent of
Mr. Avenatti," Griggs said in a statement to USA TODAY.
Meanwhile, the drumbeat of anti-Kelly news on TV continues.
The charges against Kelly say the shirt she was wearing that day was submitted to the Illinois State Police for DNA testing and a semen sample matched Kelly’s DNA profile.
Carter told CBS she called the police "the day" the incident happened, though Chicago investigators declined to press any charges at the time. "They asked for my clothing and I gave them my favorite Tommy Hilfiger shirt. And that's what I found DNA evidence...semen."
Later, Carter signed two confidential agreements with Kelly totally $750,000 agreeing not to go public about what she says happened. Kelly denied any wrongful conduct in both agreements.