Sun-Times music critic Jim DeRogatis must testify at R. Kelly's child pornography trial, a judge ruled today.
Cook County Judge Vincent Gaughan said DeRogatis--who provided the police with the sex tape at the heart of the case--is not protected by any reporter's privilege or the 1st Amendment because he is the first person known to have possessed the video.
The defense has the right to question him about what he may have done with the VHS cassette between the time he received it and the moment he handed it over to the authorities, according to the ruling.
The Sun-Times will appeal the decision, attorney Damon Dunn said.
Gaughan will not allow the defense to ask him about his sources or subpoena any reporting notes he took before he gave the tape to a law-enforcement official, according to the ruling. However, he must turn over notes from an interview he conducted after police began investigating the case.
DeRogatis most likely will assert his 5th Amendment right against self-incrimination and not answer certain questions while on the stand, his lawyer said.
The defense intends to question DeRogatis about whether he manipulated, morphed or copied the video after receiving it. The singer's attorneys contend the music critic--who spent years chronicling the R&B superstar's relationships with young women--has a personal vendetta against Kelly.
"The bias was so strong it compelled the reporter to break the law," said Kelly's attorney, Marc Martin.
Last week, Kelly's team suggested that DeRogatis copied the sex tape and showed it to Stephanie "Sparkle" Edwards, a relative of the video's alleged female participant. If that happened, it's possible he might have broken the state's laws against reproduction, possession and dissemination of child pornography, the defense says.
Both the judge and the defense, however, acknowledge the statute of limitations ran out on any copying or screening of the tape in 2002. If he still has a copy--or had it within the past three years--it's possible he may have broken the law, Gaughan said.
The judge has repeatedly warned reporters covering the case that the 1st Amendment does not give them the right to possess or show censored versions of the sex tape.
"Possession of child pornography is a crime," he said Friday.
Sun-Times attorney Dunn would not comment on whether DeRogatis made a copy. He also denied that the music critic's feelings about Kelly affected how he handled the tape or wrote his stories.
"Whether or not Mr. DeRogatis harbored a bias against pedophilia is not important," Dunn said.
May 30, 2008 5:28 AM: Inside dope on prosecution's key R. Kelly witness
While the jury spends the weekend pondering whether R. Kelly's mole really does—or does not—appear in the sex tape's freeze-framed images, everyone else has work to do.
Attorneys will be back in court this morning to discuss a defense motion to subpoena Jim DeRogatis, the Sun-Times music critic who first gave police the videotape. The newspaper is fighting any attempt to compel him to testify.
But that's not the only thing keeping lawyers busy. Both sides are certain to spend the weekend preparing for prosecution witness Lisa Van Allen.
The 27-year-old single mother is expected to testify that she had a three-way sexual encounter with Kelly and the alleged victim depicted in the sex tape at the heart of the child pornography case. We caught up with Van Allen's fiance, Yul Brown, Thursday night and here's what he told us about her:
•Van Allen met Kelly when she was a 17-year-old extra on his "Home Alone" video.
•She and the singer had a relationship from 1998-2005, even though Kelly was married and had children.
