CHICAGO (CBS/CNN) — A federal appeals court has denied R. Kelly’s bid to be released on bail, rejecting his attorneys’ argument that lower courts erred by declaring him a flight risk and a danger to the community, as he awaits multiple trials on sex crime charges.
After striking out in three attempts to convince a federal judge in New York to release him from jail due to the COVID-19 pandemic, Kelly took his case to the Second Circuit Court of Appeals earlier this year. On Tuesday, a three-judge panel upheld the lower court’s ruling.
“We perceive no clear error in the district court’s determination that the government has demonstrated by clear and convincing evidence that Kelly presents risk of a danger to the community and by a preponderance of the evidence that Kelly presents a flight risk, and, moreover, that no condition or combination of conditions could assure against those risks. Likewise, the court did not clearly err in determining that Kelly failed to demonstrate a ‘compelling reason’ for temporary release,” the ruling states.
Kelly’s attorneys did not say if they plan to seek a rehearing before the full Second Circuit.
“Clearly, we are disappointed with the decision. The so called maxim of the presumption of innocence appears to be a misnomer. We will continue to vigorously fight for Mr. Kelly’s vindication,” defense attorney Tom Farinella wrote in an email.
Federal prosecutors repeatedly have argued he is a flight risk, and if released would also pose a risk of witness tampering. The feds have noted the charges Kelly now faces accuse him of threatening witnesses and paying bribes to keep witnesses from cooperating in the previous child pornography case against him in Cook County, which resulted in his acquittal in 2008.
Part of prosecutors’ argument for keeping Kelly behind bars involved his access to money. While Kelly’s defense team argued 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 alone.
If Kelly were 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.
Kelly’s attorneys have countered prosecutors’ claims he is a flight risk, arguing in court filings that he ‘would be perhaps the most obvious and recognizable person on the streets of Chicago, or anywhere else in the country’ if he were to try to flee. They also have said he is afraid of flying and has no passport or other identification for travel.
Prosecutors, however, pointed 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 claimed. In court filings, prosecutors said 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.
Kelly’s attorneys have argued his age of 53, and the fact he was recently diagnosed as diabetic make him especially vulnerable to contracting the virus while locked up at the Metropolitan Correctional Center in downtown Chicago
The embattled singer’s defense team also argued they cannot properly prepare for his upcoming trials — which have been delayed indefinitely due to the pandemic — because they can only speak to him for 15 to 30 minutes at a time.
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 last week.
Defense attorneys also said Kelly has “literacy issues” that make it impossible to prepare for trial without meeting him in person.
“He has essentially been cut out of the discovery and preparation process,” Farinella wrote in a court filing.
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.
The appeals court said they are confident Kelly’s trial judges will assure he has adequate opportunity to consult with his lawyers before his trials begin.
Late last month, Kelly was moved to solitary confinement for his own protection, after a fellow inmate attacked him at the Metropolitan Correctional Center in downtown Chicago.
In a legal filing last week, the inmate, Jeremiah Farmer, claimed he sneaked into R. Kelly’s jail cell with every intention of attacking the singer.
In the handwritten filing to the Seventh Circuit Court of Appeals, titled, “The Government Made Me Attack R. Kelly,” Jeremiah Farmer said he was “forced” to beat the Grammy winner.
Kelly was asleep in his cell at the downtown federal jail when he was attacked.
Farmer is in jail for racketeering conspiracy. He wrote a motion to the appeals panel asking for an extension for filing his docketing statement. He complained that the COVID-19 pandemic had made it so he could not use the library computer to make legal copies in a timely fashion and was denied legal copies of his motions by an attorney and a judge. He also claimed that every attorney who had been assigned to him had been “ineffective and conspired against” him.
“Farmer, with nowhere else to turn for legal help, was forced to assault hip-hop R&B singer Robert Kelly in hopes of getting spotlight attention and world news notice to shed the light on the government corruption,” Farmer wrote. “Due to the most blatant government corruption in Farmer’s case, and being in lockdown for R. Kelly protest, I physically beat Mr. Kelly in an attempt to shed media spotlight on Farmer’s case to prove government corruption and helping Farmer’s innocence to prevail.”
Also included in the filing was a Bureau of Prisons incident report in which an employee said he was attempting to meet with Farmer at 9:45 a.m. Wednesday, Aug. 26, when Farmer left the office despite being ordered to stay. Farmer then went to another section which was not the one he is assigned to, and the employee followed him. The employee reported that he found Farmer on top of Kelly on the lower bunk in the cell, and said Farmer appeared to be punching Kelly in the head and torso.
The employee ordered Farmer to stop attacking Kelly, and when Farmer did not respond, the employee stopped the assault using pepper spray.
Following the attack, Kelly was moved to solitary confinement.
Kelly faces sex crime charges in four separate jurisdictions in Chicago, New York, and Minnesota.
Federal charges in New York accuse Kelly of using his fame to recruit young women and girls for illegal sexual activity. The racketeering case also accuses him of kidnapping, sexual exploitation of a child, and forced labor. Jury selection in that case had been scheduled to begin on Sept. 29, but the trial date has since been postponed indefinitely, due in large part to the pandemic.
Federal prosecutors in Chicago have charged him with videotaping himself having sex with underage girls, and paying hush money and intimidating witnesses to cover up his crimes. That trial had been scheduled for October, but also has been postponed indefinitely.
Cook County prosecutors have charged Kelly with multiple counts of sexual assault and sexual abuse against four women years ago. The first of those trials was scheduled for Sept. 14, but all jury trials in Cook County are currently on hold due to the pandemic.
Minnesota prosecutors have charged him with engaging in prostitution with an underage girl. No trial date has been set in that case.
It’s unclear if any of Kelly’s trials will be held as currently scheduled, due to the coronavirus pandemic.
If convicted of all the charges, Kelly could face the rest of his life in prison.
(© Copyright 2020 CBS Broadcasting Inc. All Rights Reserved. The CNN Wire contributed to this report.)