The Second Circuit Court of Appeals’ decision said prosecutors presented “clear and convincing evidence” that Kelly presents a potential danger to the community and he is a flight risk.
R. Kelly’s attorneys asked for his release from federal custody before the panel of three judges Friday morning, arguing that the singer has been unable to prepare for his upcoming trial for nearly six months.
The singer has not seen his attorneys in person since March, when prisons went into lockdown, cutting off in-person legal visits due to coronavirus concerns, his attorney told CNN. His trial was scheduled to begin at the end of September in federal court in Brooklyn, but was delayed in part due to the pandemic.
His legal team says that because the singer can’t read or write, he can’t review legal documents in his case, make notes, or “meaningfully” communicate with lawyers without in-person meetings.
“He has essentially been cut out of the discovery and preparation process,” attorney Tom Farinella, who argued Kelly’s bail appeal, wrote in a court filing.
This was the sixth time Kelly’s legal team argued for his release since he was taken into federal custody in July 2019. Four of the requests — including Friday’s appeal — were made amid the pandemic, which attorneys argue has put Kelly at risk for developing severe complications from the virus.
Steve Greenberg, an attorney for Kelly, said of the ruling Tuesday, “We are again disappointed.”
“There seems to be a different set of criteria when it comes to R. Kelly,” Greenberg said in a statement to CNN.
Farinella said Tuesday that Kelly’s legal team “will continue to vigorously fight for Mr. Kelly’s vindication.”
A spokesman for the U.S Attorney’s Office for the Eastern of District of New York had no comment on the appeal being denied.
Kelly is facing charges in New York including racketeering and violations of the Mann Act, which prohibits trafficking for prostitution or sexual activity. The charges Kelly faces stem from activity that prosecutors say took place over two decades in New York, Connecticut, Illinois and California. Kelly was also indicted on federal charges in Illinois for child pornography and obstruction, as well as state charges of aggravated criminal sexual abuse.
He has pleaded not guilty to all of the charges.
Farinella argued that Kelly’s only way of communicating with attorneys is through phone calls that do not “possess the safeguards of confidentiality” needed to have meaningful attorney-client privileged conversations.
“For half the time he’s been incarcerated, he’s not been able to meet with counsel,” Farinella argued before the panel Friday morning. “There’s an extraordinary amount of work that has to go into preparing.”
Farinella added that because the allegations span decades and involve people whose identities are being kept anonymous, Kelly’s input is crucial to the case.
An attack behind bars
Kelly’s latest bail appeal came over a week after his attorneys said he was attacked by a fellow inmate.
An inmate in the Chicago federal detention center where R. Kelly is being housed said in a court filing on Sept. 1 that he attacked the singer in hopes of getting attention to his own case.
In the handwritten filing, Jeremiah Farmer, 39, wrote about his frustrations with Covid-19 limiting his access to a computer to work on his case. Farmer was convicted by a jury in 2019 of racketeering charges that included drug trafficking and two murders in connection with gang activity, according to other court filings.
Farmer, who represents himself, wrote that he had nowhere else to turn for legal help and “was forced to assault hip-hop R&B singer Robert Kelly… in hopes of getting spotlight attention” on government corruption.
In the filing, Farmer asked for an extension for his case. An appeals court ruled it would continue to consider his request and the extension was not necessary.
“Due to the most blatant government corruption in Farmer’s case and being locked down for Robert Kelly protest, I physically beaten (sic) Mr. Kelly in a (sic) attempt to shed media spotlight on Farmer’s case to prove government corruption and helping Farmer’s innocence to prevail,” Farmer wrote.
He added that the Aug. 26 attack was an attempt to find an effective attorney to help with his case.
Greenberg told CNN that Farmer’s court filing is one of several reasons he believes Kelly shouldn’t be held in custody.
“In addition to the reasons we have already laid out, including he’s not a danger or a risk of flight, he is a prime candidate for other inmates to abuse to get jail cred,” Greenberg said in a statement to CNN. “I fear this is going to open the floodgates.”
Farmer’s filing enclosed a copy of a Bureau of Prisons incident report that details the incident involving Farmer, saying that he was seen on Aug. 26 outside of his assigned section.
A prison employee observed Farmer appeared to be on top of Kelly, “punching inmate Kelly repeatedly in the head and torso.”
The officer wrote in the report that pepper spray was deployed when Farmer did not stop the attack, and that Farmer was placed in restraints and taken out of the unit.
Prosecutors: Releasing Kelly would be dangerous
Prosecutors argue releasing Kelly would be dangerous — because he is a flight risk, a danger to the community, and he has a history of tampering with witnesses and jurors.
Part of prosecutors’ argument for keeping Kelly behind bars involves his access to money. While Kelly’s defense team argues in court filings that he has “almost no liquid financial resources,” prosecutors say the singer has received over $200,000 in royalty proceeds in the first quarter of 2020.
If Kelly is released to his home in Chicago, he’d be out of the jurisdiction of the Eastern District of New York, according to prosecutors, and if he removed his electronic monitoring device or tampered with it, law enforcement’s response would not be instantaneous.
Prosecutors also point out that because people are wearing masks in public to help curb the spread of coronavirus, Kelly could easily conceal his face, “thereby going unrecognized.”
Kelly has methods of passing messages between himself and associates without detection by authorities, prosecutors claim. In court filings, prosecutors say that in November 2019, while in the Chicago federal detention center where he is currently being held, Kelly used an intermediary to “smuggle” a letter into the detention center without inspection.
Federal prosecutors in the Northern District of Illinois allege Kelly persuaded multiple witnesses to give false testimony in 2002 before an Illinois grand jury, which was looking at a case alleging Kelly had a sexual relationship with a minor. He was indicted on 21 counts of child pornography, but later acquitted in a 2008 trial.
Prosecutors also say they have a recording that shows Kelly asked an associate during his 2008 state trial to contact a juror and tell them that Kelly was a “good guy.”
In response to these allegations, Farinella said in a statement to CNN that the government’s argument to keep Kelly behind bars until his trial “does little if anything to further its position that the extreme measure of impaneling an anonymous and sequestered jury, which would severally prejudice Mr. Kelly and violate his right to a fair trial guaranteed under the Constitution, should be granted.”