The NYT takes a look at what R. Kelly has been accused of today.

It’s the first time that I’m aware the paper has told readers that he’s accused of filming himself urinating on a girl police say was 13 or 14 at the time, though the paper has told us numerous times what a wacky, funky guy he is. (This was Kelefa Sanneh’s celebrated “Freaky Defense,” detailed by Hitsville here. )

The Times is an extraordinary place, of course, and it’s easy to pick on it for the few things it doesn’t do well. But as I wrote there, it has not distinguished itself with its coverage of this matter, and I thought the article today, besides being a full six years late, was more than a little flip.

It began by saying that charging Kelly with making child porn rather than child molestation was comparable to the prosecution of another fabled Chicago name, Al Capone, on income tax evasion rather than being a “murderous gangster.”

Isn’t that a cheap comparison? Child porn is a serious charge. Kelly could be sentenced up to 15 years and a conviction would mark him as a sex offender, which presumably would scotch a good part of his concert career. It’s not like they went after him for jaywalking.

(Also, the comparison would be more apt if the Times had never told readers that Capone was a murderous gangster, or had largely focused, in its coverage of him, on his fine public speaking skills.)

Then the story says:

That the girl in question, who might have been as young as 13 when the tape was made, is now a woman is one hurdle for the state’s case. A bigger problem is that she has consistently denied being on the tape. Saying this is a criminal case without a victim, some legal experts already smell a fiasco.

“The girl will take the stand and say, ‘It’s not me,’ ” said Leonard L. Cavise, a professor at DePaul University’s College of Law. “If she is in any way a credible witness, and the prosecution does not have evidence she’s been bought off, how can that fail to cause a reasonable doubt?”

To get around this complication, prosecutors are expected to introduce witnesses who will attest that it is indeed she on the tape, as well as a woman who reportedly will say that, when she too was under age, she had sex with Mr. Kelly and the girl.

But, as other news reports have taken the time to note, Cook County apparently has dozens of witnesses to testify that it is she; and I don’t think it would be hard for a jury to discount the girl’s testimony under the circumstances. (The prosecution would presumably also have contemporary photos of her to introduce as evidence.)

The story continues:

“This is a very weird case,” Mr. Cavise said. “It makes Chicago look like a laughingstock. It’s as if they said, ‘Let’s spend millions of dollars and six years, shut down an important courtroom, cause a media circus and end up either convicting him of nothing at all or on some charge that has nothing to do with what you really should get him on if he’s guilty: sex with children.’ ”

I am unclear as to why using a courtroom to try a criminal case is something that makes a city a laughingstock.

(I think this is one of those newfangled, postmodern “legal studies” critiques of the criminal justice system.)

In reality, Cavise is just engaging in cable news-style sophistry, and his comments don’t deserve to be in a serious news story.  The reason the state is going after Kelly on child porn charges is that it seems to be the smart gambit when the victim won’t testify. It could be it allows the state to say a girl was involved rather than this girl. And it’s not true that child porn has nothing to do with the case.I haven’t read anything that details what the standard of proof is on child pornography, but I would bet that there are some guys doing hard time on less evidence than a high-quality video starring themselves.* The jury could certainly convict Kelly on the evidence of the tape if they are convinced the girl, whoever she is, was underage.

(Question for further research: Aren’t there laws about getting actors’ legal age on record in the porn industry? Can’t the state just challenge Kelly to prove that the girl is of legal age? Am I the first person who’s thought of that? )

This issue of why it has taken so long to bring Kelly to trial is a separate one, which the NYT doesn’t do a good job of explaining either. The Chicago Tribune did a piece several years back looking at the delay from the point of view o the prosecutor’s ofice, but didn’t find any answers. In the years since, a series of snafus and accidents befalling participants have drawn it out further.

* Though they of course would have lacked Kelly’s legal resources, which as history has shown will probably be the deciding factor in the case. That’s another thing the NYT story didn’t mention.

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Previously in Hitsville:

R. Kelly and the NYT: The Freaky Defense

Tribune, Sun-Times protest closed hearings in R. Kelly case

Secret hearings in the R. Kelly case

The Godfather Who Shagged Me: The complete R. Kelly SexFacts™—Everything you ever wanted to know about the R. Kelly case

R. Kelly’s Publicist: He slept with my daughter!