Making a Bad Situation Worse in Chicago

I wouldn't know R. Kelly if the singer came up to me and handed me his CDs. And quite frankly I really didn't intend to follow closely his child pornography case which is apparently based upon a videotape of Kelly allegedly having sex with a girl who was 13 or 14 at the time. It's just not my kind of case.

But that has changed somewhat in light of a disappointing ruling today by a Chicago judge who intends to show the videotape to the public in open court during Kelly's trial over the objections of both defense attorneys and prosecutors. That's right. If you get to court early enough that day, you'll be able to see free child pornography courtesy of the Illinois state courts.

Cook County Criminal Court Judge Vincent Gaughan says he is going to allow the tape to be played in open court because it "is the whole crux and linchpin of the case. If there was no tape, we wouldn't have a case... I find there is not an overarching interest for excluding the public and the press from the portion of the trial that is the linchpin." Of course, that rationale has not stopped scores of judges all over America recently from withholding from public view evidence that is vital for both the government and defendants in criminal cases, especially in terrorism cases, based upon the flimsiest of arguments offered by federal prosecutors.

Now, you could argue, as many of my journalist friends will, that Judge Gaughan has got it right. That if and when judges err they should err on the side of conducting more of their trials in the open. But whomever is on that tape with Kelly deserves better than to have her worst nightmare played out in front of anyone and everyone in open court. The easy and smart choice here would have been to allow the video to be played to the jury and perhaps to a group of pool reporters, who then could report on what they observed to the rest of us. Courtrooms are sealed off all the time when sensitive information is offered at trial. And this courtroom could have been as well. This is a ruling that turns a trashy tabloid case into an even more sorry tale of how the legal system can sometimes take a bad situation and make it worse.

By  |  June 9, 2006; 4:00 PM ET
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I'd say just let the jury view the tape and keep the media out of it -- as the tabloids will have a field day with the lurid details. Look at the hoopla over Michael Jackson (who I believe was convicted in the press and in the media long before trial).

And you're correct on protecting the victim in the case, as s/he can be revictimized (especially since in some areas of the country victims can't say, "No I don't want to goto court", the prosecutor can force it. That's potentially abusive via the DA and the defense.

Wrong and wrong.

SandyK

Posted by: SandyK | June 9, 2006 08:08 PM

Actually, SandyK, I think the more likely consequence of this trial is that in the future other victims will be less likely to turn in their victimizers. It's pretty clear that at least in that courtroom, if you are a victim of rape that all the details will be aired fully in public. While the victims shouldn't have to be ashamed, they often are.

Posted by: Cujo359 | June 9, 2006 10:20 PM

In oder to have the fairest trial, which is to say (given the evidence) in order to convict and make it stick, they should show the evidence in open court. How large is the court? Very quickly spectators are too far away to see much, most seats won't have a good view. What is important is to be open, so it does not become an issue on appeal. You gotta break a few eggs to make the omelet, in this case.

Posted by: ck | June 9, 2006 11:48 PM

Cujo,

Yep. Airing the video tape in open court will have a chill effect on reporting rape, incest and pedophilia (parents would not want their kid to be exploited 3x, nor dishonor the family name in the media -- as it shows tabloids and the media don't keep identities hidden well).

CK,

The issue isn't only with the Chicago courtroom, it's the green light this gives to show it in ANY courtroom in the USA.

Some courtrooms aren't very large, enough to hold but 50 or less people, which is close enough to view the details. Keep in mind a large TV will be used so the jury at least can see the details, not some 13" model @ 20 feet away.

SandyK

Posted by: SandyK | June 10, 2006 12:54 AM

I lean towards agreeing with Mr. Cohen, however, in playing devil's advocate I ask:
-Isn't this tape already available across the internet to the public anyway? It snuck out to the public shortly after the news broke.
-R.Kelly is presumed innocent and did plead not guilty. Isn't this saying, "hey, that isn't me on that tape." Yet his lawyers objected to the showing. Why?
-The issue may come down to whether you think trials should be public or not. We may not be one of the 12 jury members, but ought we be able to see the case against the accused?
http://castawayre.blogspot.com

Posted by: R.Enochs | June 10, 2006 02:26 AM

This may be the most asinine ruling ever issued by a sitting US jurist, which is saying something. First, the judge has authorized the public display of material, which, if displayed by any other peson in any other venue, would constitute a federal felony. I don't recall Justice Stevens saying "I know it when I show it." Second, the public airing of the tape is no less a violation of the victim than the original act was. Finally, the fact of act and its videotaping are the crime and the tape would be unduly inflammatory and prejudicial - and not just to the defendant. Can a jury see and hear an underage fan who is clearly willingly, even enthusiasticallty, participating in sex with a recording icon and not have it create a perception of consensuality where no such consent can legally exist?

Posted by: Clarkpark | June 10, 2006 07:01 AM

Good points, Clarkpark.

Video is very persuasive in applying guilt or innocence. Usually allowing it in as evidence (like those camera shots of burglaries and such) isn't an issue and will prove guilt if validated. But as you point out showing child pornography in the courtroom is also skirting the Law on displaying illegal content. If we can't watch child pornography without going to jail and being listed as sex offenders, the court shouldn't have such access to show it to the entire courtroom. It's a double-standard, and one that opens the door of, "If so-and-so judge claims it's okay to view it in court, it's okay to view it anyway." An ugly slippery slope.

It's a bad precident anyway it's sliced.

SandyK

Posted by: SandyK | June 10, 2006 09:36 AM

Since when did videotaping sex with minors become illegal?

Posted by: derek k | June 10, 2006 10:12 AM

I hear R Enoch's arguments. But I completely disagree with them. There is always a balancing test between the public's right to know and the value of public trials and the rights of the individuals and the fear of, as I believe Sandy mentioned, fewer victims coming forward. As the author points out, courtrooms are sealed off all the time when sensitive information is offered at trial. Moroever, I don't think the fact that this is available on the Interent argues for public disclosure: I think it argues just the opposite. I don't know much about the facts of this case. But you have to feel awful for the girl and her family.

Ron Miller
www.marylandinjurylawyerblog.com

Posted by: | June 10, 2006 11:27 AM

Perhaps the minor's identity cannot be ascertained by the video, or perhaps she's black, or at least dark skinned, and hence has less legal protection than the lighter skined elements of the population.

Posted by: Dave, Freeport, IL | June 10, 2006 11:28 AM

I disagree with you. To suggest that a "pool of reporters" is somehow a substitute for an "open court" proceeding to continue the glorification of the media types who, after all, are part of the process of the tabloid journalism you decry.

This is a criminal trial and criminal trials, as all trials, are required to be open. The judge is not broadcasting this trial as the nutcake in California did with the O.J. Simpson trial.

Clearly, all agree that the judge, jury and counsel should see the videotape. If there are spectators in the court, including reporters who want to see it, whether out of legitimate involvement in the case, an assignment to report on it, or out of voyeurism, it makes no difference to the rest of us.

The tape has already been described by you - someone having sex with a teenager, perhaps 13 or 14. What additional description do you want from a pool of reporters?

I think your point is silly and not thought out at all.

The judge's ruling is well within his discretion. This is not a national security case where classified evidence needs to be sealed.

Posted by: AM | June 10, 2006 12:21 PM

As someone who has freely admitted to ignoring the case up front, please make sure you check your facts before making accusatory statements. I'm not an R. Kelly fan or supporter, but the girl in the video was not raped-- in fact, it was initially determined that they didn't even have intercourse, which was why certain charges were dropped. I don't think you can say it's this girls "worst nightmare", if she was a willing participant. And yes, I understand she was a minor, and the act was deplorable, but please make sure you follow up on your facts before commenting on something.

Posted by: | June 10, 2006 12:58 PM

Ron Miller wrote:
===========================================
"As the author points out, courtrooms are sealed off all the time when sensitive information is offered at trial."
===========================================

Yes, and airing such a video in court is equal to the DA or defense attorney bringing in sex toys to describe a rape scene (since they were found in a room of the victim). Sometimes vivid graphical aids aren't needed, especially since it turns the court into a peepshow.

This isn't "Night Court" of a SNL skit, this is a real courtroom and the public expects the law profession to act professional, not turn the courtroom into a WWF match, complete with a three-ring circus of tabloid journalism. It'll deny justice just for tom foolery.

SandyK

Posted by: SandyK | June 10, 2006 02:06 PM

That videotape was on the internet years ago. it may be really bad subject matter, but millions of people have already seen it. apparently this jury doesn't get internet forwards...

Posted by: Rideout | June 10, 2006 08:33 PM

If the video tape wasn't already in the public sphere and readily downloadable off the internet, then an argument could be made for closing the proceedings, but this is not the case. As you stated above, the argument "that if and when judges err they should err on the side of conducting more of their trials in the open" applies here because the video is already public sphere and the privacy of the victim cannot be protected.

Posted by: Don, Austin | June 10, 2006 10:20 PM

Wow, this one's prettty icky! ("Icky" is the correct legal term, right?) I guess that ultimately & rationally, I have to side with the judge on this one. The legal arguments against statutory rape and child pornography have always been grounded on the act of child abuse, not on potential damage to reputation of the abused. And it's more than a little bizarre to ask that a judge refuse to allow the public to observe the presentation of evidence that the public could view on the internet with very little effort.

Posted by: Bob S. | June 11, 2006 04:49 AM

I hate myself for doing this (normally the subject is sufficient for comment), but I'm curious:

Sandy K: What do, "bringing in sex toys to describe a rape scene (since they were found in a room of the victim)" - Posted by: SandyK | June 10, 2006 02:06 PM - and closing a courtroom to the public have to do with each other?

Have you perhaps sidetracked yourself here? I'm not aware that anyone has seriously questioned the propriety of introducing the videotape as evidence.

Just wondering what the analogy was intended to convey.

Posted by: Bob S. | June 11, 2006 05:00 AM

Sandy K. - A quick follow-up (after doing additional reading & thinking):

Just to be clear, I don't have any big philosophical disagreement with your feeling (as expressed in all your posts prior to the one referenced above) that the court should be closed to the public for the presentation of this particular piece of evidence. I think that I'd go the other way in this set of circumstances, but your position is reasonable and you've defended it well.

I lost you when you started to speak of sex toys, however. The only question here is about the presence of the public, not about the evidence to be presented, right?

Posted by: Bob S. | June 11, 2006 05:27 AM

That reference came from an actual case where a DA even posed for pictures with a dildo from a crime scene.

It's antics like that to keeps me from wanting any video/aid or whatever to be included for public browsing, as the potential of abuse is great. It turns a courtroom into a peep show and a mockery to the court, which isn't it's purpose.

SandyK

Posted by: SandyK | June 11, 2006 09:10 AM

Dear Andrew,

I sent this letter to the Chicago Tribune in regards to the the tape being shown in public and they did not have the courage to publish it. Black women especially girls are more likely to be raped and less likely to report it. There's really no reason and my brother is a prosecuter in Baltimore and out of the many cases that he has seen the one thing that is consistent is the victim's fear to go public, to show this tape, except for the utter disprect for the color of the victim. Rape is a horrendous crime that the black community does not take seriously and since the victim has been argued to be thirteen - it means that the crime would fall under stautory rape willing yes, but the capacity to say yes is dimmished by age. I can only assume that the writers above are not black and therefore cannot relate to the horror of the violation of a black body - yes I'm going there. In my letter I cite legal prescedent where a judge chose to protect the supposed victim because of her age even though the defense argued that she was a willing participant. I also should add that the victim was sixteen at the time and the case (highly visible and infamous) went in favor of the victim. I hope that you may follow up your very brave article with another since many women of color who have been assaulted are sitting alone in the dark, perceiving correctly that no one hears their cries.

PS. The video has been deemed child pornagraphy and thus is illegal to own, despite it's leak on the internet.

Thank you so much!

re: Judge: R. Kelly tape can be shown to public

It seems in Cook County only white girls/women who are raped are worthy of any respect. Not only has the R. Kelly pornography trial taken a dismal amount of time to be heard, Justice Vincent Gaughan has chosen to compound the matter by allowing the public to view the tape of R. Kelly urinating on a person whom prosecutors claim was a fourteen year old girl at the time. His reasoning, "This is the whole crux and linchpin of the case. If there was no tape, we wouldn't have a case," the judge said. "I find there is not an overarching interest for excluding the public and the press from the portion of the trial that is the linchpin."

As congress and President Bush work to enact tougher child pornography laws Justice Gaughan seeks to circumvent them. What is value in showing this tape to the public? This young woman still has to go on with her life regardless of whether Mr.. Kelly is convicted or not. I highly doubt if this was a young white woman this tape would be put on display for the public's titillation.

In another highly publicized case involving a taped assault, the Orange County gang rape case where the defendants and victim were white, Judge Francisco allowed the tape into evidence because of the strength of the video for the prosecution stating, "The defendant's visual disregard for another is so graphic that this court would reasonably anticipate that any prosecuting agency would endeavor to use all of its resources to properly prosecute the alleged crimes." Yet, he blocked access of the tape to the public and the media in order to shield the victim from from further humiliation. Why does this young woman not deserve the same courtesy?

This case is an embarrassment since it's public record that Mr. Kelly attempted to marry a fifteen year old Aaliyah. Further proof that America views black women's bodies as nothing more than chattel. Cook County residents should look into how much tax payer money has wasted while this man is free to earn millions of dollars as the "Pied Piper" and next election and send Justice Gaughan packing.

CD Gayle
Los Angeles, CA

Posted by: | June 13, 2006 12:09 AM

I believe this judge is correct in having this sex tape shown in court. This is key evidence, and to crush all doubts and rumors, it should be played in court. The problem with our country, U.S., is that we are suffering from perverted sexual obsessity. The last couple of years I have read of many high ranking officials and professionals being arrested and charged with sex crimes. I mean doctors, lawyers, priests, the president, politicians, etc., etc., etc. Our country is getting porno-filthy minute by minute. U.S., us, we need our country sexually cleaned up.

Posted by: show it | July 28, 2006 12:50 PM

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