Judge Vincent Gaughan accused Sun-Times lawyer Damon Dunn of making "misrepresentations" in his effort to stave off a subpoena to the paper's pop music critic, Jim DeRogatis. The judge also said he was considering having DeRogatis arrested for not showing up in court today.
Gaughan had ordered DeRogatis and Dunn to appear in court today at 10 a.m., but they did not show. The judge then ordered Dunn to appear at 11:30.
R. Kelly's defense team wants to force 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 DeRogatis would not have to testify about his sources.
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."
The hearing is set to continue at 1:20 pm.