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How does R. Kelly go on trial in the coronavirus era?

Federal prosecutors don’t want to let him out of jail, but they say COVID-19 means they can’t put him on trial, at least in Chicago. Ex-prosecutor says it ‘reveals a problem.’

R. Kelly walks out of the Daley Center after an appearance in child support court in March 2019.
Ashlee Rezin/Sun-Times file photo

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.

R. Kelly walks with supporters out of the Leighton Criminal Courthouse, Thursday morning, June 6, 2019.
R. Kelly walks with supporters out of the Leighton Criminal Courthouse in Chicago on June 6, 2019.
Sun-Times file photo

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 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 multiple-defendant 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.