R. Kelly's legal defense team filed a motion Tuesday to subpoena Sun-Times pop music critic Jim DeRogatis. Judge Vincent Gaughan said he would take up the matter on Friday morning.
DeRogatis received the tape from persons unknown more than six years ago and turned it over the police. During opening statements Tuesday, defense lawyer Sam Adam Jr. told jurors, "Nobody knows where this tape came from."
But even before the jury came out and opening statements began, Gaughan took up the issue of the DeRogatis subpoena.
“Three days after turning over the videotape to police, Derogatis met with a potential witness in this case,” Gaughan said, referring to the defense's motion.
“That is our understanding,” said defense lawyer Marc Martin.
“That person informed the police that she and Derogatis watched the videotape in Derogatis’ office,” Gaughan said.
Defense lawyer Ed Genson said they know the conversation took place from police reports. “The witness would not talk to us,” Genson said.
Gaughan then asked prosecutors if they had asked DeRogatis if he had another copy of the tape. “No, your honor,” said assistant state's attorney Shauna Boliker.
“These are extraordinary circumstances... My understanding is there is no First Amendment exception for child pornography,” Gaughan said.
Later, Gaughan said that though it was "all hypothetical at this point," having a copy of the tape could be a crime.