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Clouds form as R. Kelly, Jussie Smollett and Michael Avenatti cases converge

R. Kelly's defense attorney, Steve Greenberg, speaks to reporters at the Leighton Criminal Courthouse earlier this year. | Ashlee Rezin/Sun-Times

Three of the most high-profile criminal cases in the country overlapped in a single court filing last week, as the lawyer for R. Kelly alleged the sex abuse charges against the singer were tainted by recent revelations involving celebrity lawyer Michael Avenatti and ‘Empire’ actor Jussie Smollett.

Is Avenatti’s involvement in Kelly’s case truly “toxic” for the prosecution, as the singer’s attorney, Steve Greenberg, said at a post-hearing press conference? Has the intrigue that seems to surround every phase of Smollett’s claims that he was the victim of a homophobic attack spread to another high-profile prosecution?

Greenberg said federal extortion charges filed last week against Avenatti show the Los Angeles-based lawyer is willing to threaten bad publicity to get what he wants (specifically, those charges allege, a multimillion-dollar payday from Nike to buy his silence about allegations the shoe company bribed high school athletes).

Making the leap to another case in the national headlines, Greenberg argued that the controversial handling of the prosecution of Smollett showed that Cook County State’s Attorney Kim Foxx might be vulnerable to such pressure. Foxx had communicated with one of Smollett’s relatives in the early phases of that investigation and recused herself before the actor was charged.

“There are serious questions whether Kim Foxx was bullied, or just simply manipulated by Avenatti and others,” Greenberg said, arguing that Judge Lawrence Flood should order the state’s attorney and all witnesses in the case to preserve any communications with Avenatti.

Avenatti, who has direct ties to Kelly’s case, is far more troubling — if not toxic — to the R&B star’s prosecution than the more sensational Smollett, veteran attorneys say.

“(Avenatti) is a witness in the case, and he is now tainted. When they charged this case, Avenatti was not a criminal defendant, and now he is. That is, frankly, a sea change,” said veteran defense attorney Tony Thedford. “I’m sure no one in the state’s attorney’s office was thrilled.”

Is the state’s attorney’s unorthodox decision to dismiss charges against Smollett, without any admission of guilt, a sign that Foxx or her office could be “bullied” or “manipulated” by high-powered attorneys?

“The Smollett piece has taken on its own legs, but that’s all based on speculation,” Thedford said, noting there is no way a jury in Kelly’s case would ever hear about Smollett inside a courtroom. “I don’t think that (Kelly’s) motion misstates or assumes anything untoward happened. It’s pretty reasonable to request the information, but we don’t know that information exists.”

Avenatti claims to have turned over a VHS tape filmed in the late 1990s that purportedly shows Kelly having sex with an underage girl. In court, prosecutors have said they have video of Kelly engaging in sex acts with a girl between 1998 and 1999, and that on the tape, both he and the girl state that she is 14 years old.

“If that is the tape they are using as evidence, Avenatti is not necessarily a problem if they have the victim willing to authenticate the tape, to say, ‘That’s me on the tape, and I was 14 when it happened,'” said DePaul University Law School professor Monu Bedi, a former prosecutor who teaches criminal procedure.

Prosecutors had no help from either the alleged victim or her parents during Kelly’s 2008 trial, likely a fatal flaw in a case that ended with Kelly’s acquittal on child pornography charges.

In court, prosecutors did not mention any cooperation with the victim on the new tape and said a relative had identified her on the video. The victim in that case – “R.L.” – has the same initials as the alleged victim from the 2008 trial.

“But if she is not cooperating, then they have to establish a chain of custody for that video,” a difficult task, Bedi said. “Where has it been for 20 years?”