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 will argue Kelly’s bail appeal before the Second Circuit Court of Appeals, wrote in a court filing.
This will be the sixth time Kelly’s legal team has 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. Three of the previous requests were denied.
He has pleaded not guilty to all of the charges.
Farinella argues 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.
Even if Friday’s appeal is granted, Kelly would still need to win an appeal for bail on federal charges in Illinois before being released.
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 because 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 alone.
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 before an Illinois grand jury in 2002, 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.”
An attack behind bars
Kelly’s latest bail appeal comes over a week after his attorneys said he was attacked by a fellow inmate.
Farinella told CNN the attack, which he said took place on Aug. 26, will be another reason his defense team calls for his release.
“This incident coupled with the coronavirus restrictions at the MCC reinforces the need for Mr. Kelly to be released so he can assist in his defense with counsel and prepare for trial without the fear that his personal safety is at risk,” Farinella said in a statement to CNN last week.
The heart of Farinella’s argument to release Kelly will be his inability to prepare for trial, even if the trial date is further pushed back, he told CNN.
In court filings, Kelly’s attorney argues that the allegations against him span decades, and that he will be the best person to assist his legal team in building a defense case.
“Mr. Kelly’s contribution (to his case) is even more crucial here because the trial court has allowed the government to conceal the identities of some of the alleged victims — who will be key trial witnesses,” said Farinella in a court filing.