Sun-Times music critic must testify — Defense wants to ask him about sex tape

Editor’s note: This story was originally published in the Chicago Sun-Times on June 4, 2008.

Judge Vincent Gaughan ordered Chicago Sun-Times pop music critic Jim DeRogatis to appear in court today in the R. Kelly child pornography case or face contempt of court charges.

DeRogatis will be required to testify as a defense witness unless the Illinois Appellate Court issues an emergency stay by this morning, the judge said. The Sun-Times filed an emergency motion with the appellate court Tuesday afternoon, contending Illinois law protects DeRogatis from having to testify.

Gaughan’s ruling capped a contentious hearing in which the judge berated lawyers for the Sun-Times. At one point, he blasted the lawyers for filing their notice of appeal in Cook County Circuit Court.

“You filed it in the wrong court. If you’re going to file a notice of appeal, you have to file it in the appellate court,” Gaughan said.

But several appellate lawyers said the Sun-Times’ lawyers filed in the right place. Illinois Supreme Court Rules 303 and 606 call for notices of appeal to be filed with the circuit court, not the court of appeals, they noted.

“He’s just wrong,” said lawyer Joel Bertocchi of Hinshaw & Culbertson, former solicitor general of Illinois. “He’s just making a common mistake.”

Lawyers for Kelly — who has pleaded not guilty to videotaping himself having sex with an underage girl — want to question DeRogatis about how he got the sex tape in 2002.

According to testimony in the case, DeRogatis received it anonymously on Feb. 1, 2002, and gave it to police. Stephanie “Sparkle” Edwards, the alleged victim’s relative, testified she viewed the tape with DeRogatis on Feb. 4, 2002.

Gaughan and Kelly’s lawyers have said DeRogatis would have committed a crime by copying the tape.

Absent action by the appellate court, DeRogatis can avoid testifying only by invoking his Fifth Amendment right against self-incrimination, the judge said.

Gaughan had ordered DeRogatis and Sun-Times lawyer Damon Dunn to appear Tuesday morning, but they did not show at the appointed time.

When Dunn appeared later, Gaughan told him the purpose of the hearing was “to see whether I’m going to issue a warrant for the arrest of your client,” referring to DeRogatis.

But the judge held off, saying he was “going to give him the benefit of the doubt.”

Dunn argued DeRogatis was never properly served with a subpoena — and is protected by Illinois’ “shield law” for reporters. “If he testifies as a reporter, it would be a serious breach of his statutory rights and his constitutional rights,” Dunn said.