Fed­eral prose­cu­tors don’t want to let him out of jail but they say pan­demic means they can’t put him on trial, at least in Chicago

Chicago Sun-Times - - TOP NEWS - BY JON SEI­DEL, FED­ERAL COURTS RE­PORTER jsei­del@sun­ | @Sei­delCon­tent

R&B su­per­star R. Kelly has been sit­ting in jail for more than a year — and fed­eral prose­cu­tors in­sist he should stay there, in part be­cause he al­legedly in­ter­fered with his child pornog­ra­phy trial more than a decade ago.

But they also say the COVID-19 pan­demic means they can’t put him on trial right now, at least in Chicago. A judge re­cently agreed, say­ing the city’s fed­eral court­house can’t ac­com­mo­date it. Kelly’s lawyers say the re­sult is an “in­def­i­nite de­ten­tion” that is “un-Amer­i­can” and “il­le­gal.”

De­cid­ing what to do with Kelly might be one of the big­gest chal­lenges Chicago’s fed­eral court will face as it tries to get back to busi­ness in the coro­n­avirus era. Or, the singer could find him­self whisked away to New York — solv­ing Chicago’s prob­lem — if he goes to trial in a sep­a­rate case there first. Be­cause he has no trial date in either dis­trict, his fu­ture is un­clear.

Either way, putting Kelly on trial dur­ing the pan­demic would pose se­ri­ous lo­gis­ti­cal chal­lenges. It would in­evitably be a celebrity trial, but that might turn out to be an­other cul­tural phe­nom­e­non se­ri­ously al­tered by COVID-19. And while the courts slowly try to fig­ure out how to han­dle such a case again, Kelly sits in jail with­out a con­vic­tion.

“It re­veals a prob­lem with our sys­tem,” Re­nato Mar­i­otti, a for­mer fed­eral pros­e­cu­tor, said.

Kelly is hardly the only de­fen­dant fac­ing a long de­lay. Mar­i­otti, now a de­fense at­tor­ney who com­ments reg­u­larly on na­tional le­gal mat­ters, said that “every case in fed­eral and state court has been held up or de­layed in one way or an­other” since the on­set of the pan­demic in March. Three Four Cor­ner Hustler street gang mem­bers in­dicted in 2017 had been set to go to trial this month, for ex­am­ple. Their trial is now a year away, and they re­main in jail.

But Mar­i­otti said Kelly’s case rep­re­sents some­thing beyond the abil­ity to put peo­ple on trial. Many women see Kelly as “a sym­bol of the fact that you can prey on un­der­age chil­dren and get away with it,” Mar­i­otti said. That means if the jus­tice sys­tem is not equal to pros­e­cut­ing Kelly, it would “rep­re­sent some­thing greater.”

The in­dict­ment against Kelly in Chicago charges him with child pornog­ra­phy and ob­struc­tion of jus­tice, al­leg­ing he thwarted his pros­e­cu­tion in Cook County in 2008 with threats, gifts and six-fig­ure pay­offs. The New York in­dict­ment ac­cuses Kelly of rack­e­teer­ing.

Prose­cu­tors have re­peat­edly pointed to the ob­struc­tion-of-jus­tice al­le­ga­tions as they’ve ar­gued Kelly should stay in jail. Last month, three Kelly as­so­ci­ates were also crim­i­nally charged with try­ing to threaten, in­tim­i­date and bribe Kelly’s al­leged vic­tims.

But the charges against Kelly’s as­so­ci­ates do not im­pli­cate Kelly. Mean­while, a fel­low in­mate at­tacked Kelly last month, pur­port­edly for at­ten­tion. Kelly’s lawyers also say re­stric­tions at the Chicago Met­ro­pol­i­tan Cor­rec­tional Cen­ter, where Kelly is housed, have kept him from pre­par­ing for trial with his lawyers. Com­pli­cat­ing mat­ters, they say, is the fact that Kelly can’t read or write.

Kelly at­tor­ney Thomas Farinella touched on all those ar­gu­ments when he chal­lenged Kelly’s de­ten­tion be­fore the 2nd U.S. Cir­cuit Court of Ap­peals on Fri­day. The three-judge panel did not seem to se­ri­ously con­sider re­leas­ing Kelly, though. Rather, one called the is­sue of face time be­tween Kelly and his lawyers a “trial-man­age­ment is­sue” and said Kelly might ask for ex­tra time with his lawyers if the feds send him out east for trial.

Go­ing to trial first in New York might be the most re­al­is­tic path for­ward for Kelly. Chicago’s fed­eral court re­sumed jury tri­als last month, us­ing a straight­for­ward case to test a se­ries of new COVID-19 safety pro­to­cols that in­volve masks, strict so­cial dis­tanc­ing and jury de­lib­er­a­tions in sep­a­rate court­rooms. But the judge pre­sid­ing over Kelly’s case, U.S. Dis­trict Judge Harry Leinen­we­ber, has said Chicago’s Dirk­sen Fed­eral Court­house can­not cur­rently ac­com­mo­date a three-de­fen­dant trial.

For­mer Kelly em­ploy­ees Der­rel Mc­David and Mil­ton Brown are also charged along with Kelly in Chicago. Each would bring his own de­fense team into a court­room where so­cial dis­tanc­ing is key.

In New York, Kelly has no co-de­fen­dant. And though the judge there re­cently scut­tled a trial for Kelly set to be­gin at the end of this month, a pros­e­cu­tor told the ap­pel­late judges Fri­day that the pre­sid­ing judge there hopes to set a new trial date soon.

Other­wise, Kelly might have to wait for au­thor­i­ties in Chicago to fig­ure out how to con­duct larger tri­als at the Dirk­sen court­house. A spokes­woman for Chicago’s fed­eral court said in a state­ment that, “We ex­pect to con­tinue con­duct­ing tri­als in this court­house and will make ar­range­ments for mul­ti­plede­fen­dant tri­als as nec­es­sary and fea­si­ble.”

A court his­to­rian could not point to any time Chicago’s fed­eral dis­trict court con­ducted a jury trial out­side of its court­house. But court hear­ings by phone or video would have been un­think­able a year ago, too. Now they’re rou­tine.

So could Kelly’s trial be held out­side the court­house?

“Judges would be hes­i­tant to do it,” Mar­i­otti said.

R. Kelly walks out of the Da­ley Cen­ter in March 2019. ASH­LEE REZIN GAR­CIA/SUN-TIMES FILE PHOTO

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