Judge Vincent Gaughan ordered Sun-Times pop music critic Jim DeRogatis to appear in court Wednesday morning or face contempt of court.
DeRogatis will be required to testify as a defense witness in the child pornography trial of R. Kelly, Gaughan ruled, unless the Illinois Appellate Court issues an emergency stay blocking the ruling before tomorrow morning.
The only other way DeRogatis can avoid testifying is by invoking his Fifth Amendment right against self-incrimination — a possibility the judge mentioned to this afternoon.
Earlier in the day, Gaughan told Sun-Times lawyer Damon Dunn he had called the Tuesday hearing "to see whether I'm going to issue a warrant for the arrest of your client," referring to DeRogatis.
Gaughan had ordered DeRogatis and Dunn to appear at 10 a.m. this morning, but they did not show. Dunn later appeared after the court recessed for an hour and a half.
When court reconvened, Gaughan accused Dunn of making "misrepresentations" in his effort to stave off the subpoena of DeRogatis.
R. Kelly's defense team wants DeRogatis to testify about receiving the sex tape at the heart of the case. The music critic received the tape anonymously in 2002 and gave it to police.
Dunn told Judge Gaughan that the Illinois reporter's privilege protects DeRogatis from having to testify. But Gaughan disagreed in a ruling last week, saying that the statute only protects reporters' sources. DeRogatis will not have to testify about his sources, the judge ruled.
Dunn argued that the Illinois statute protects DeRogatis from having to testify while an appeal is pending, but Gaughan said Dunn had mistakenly filed their notice of appeal in Cook County Circuit Court, rather than the Illinois Appellate 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."
Dunn also argued DeRogatis could not be held in contempt for failing to appear while the issue was on appeal, and that a subpoena had not been appropriately served on the music critic.
"Show me that, where it says he can't be held in contempt. I think you're making Illinois law," Gaughan said. "You've made misrepresentations to this court before."
"I take issue with that," Dunn said.
Later, Dunn told the judge, "If [DeRogatis] testifies as a reporter, it would be a serious breach of his statutory rights and his constitutional rights."
DeRogatis' and Dunn's failure to appear at 10 a.m. appeared to have put Gaughan in a bad mood. When the hearing finally began, defense lawyer Sam Adam Sr. brought a chair before the bench so that his co-counsel, Ed Genson, could sit down. Genson suffers from a neuromuscular condition that makes walking difficult.
But Gaughan waved off Adam and the chair. "Oh no, this ain't the ADA here," he snapped, apparently referring to the Americans with Disabilities Act.