Sun-Times reporter and music critic Jim DeRogatis will not have to testify in R. Kelly's child porn trial after all, Judge Vincent Gaughan ruled this morning.
Kelly's legal team wanted DeRogatis - who broke the story about the sex tape at the center of the case in 2002, and passed a copy to police to investigate - to take the stand for the defense. They said his testimony was "crucial" to Kelly's defense, claiming it would undermine the testimony of prosecution witness Stephanie "Sparkle" Edwards. They have also claimed DeRogatis's reporting has shown an "extreme bias" against Kelly.
Judge Gaughan ruled Friday that DeRogatis had no protection against testifying under either the First Amendment or the Illinois reporter's privilege, reaffirming that decision Tuesday and saying that DeRogatis must testify. The reporter's privilege only protects journalists from revealing their sources, he said.
But this morning Gaughan said that DeRogatis was protected against self-incrimination under the Fifth Amendment. "He does not have to testify," the judge said.
Outside the presence of the jury this morning, DeRogatis, wearing a dark suit and tie, appeared before Gaughan to answer questions in court from Sun-Times attorney Damon Dunn and Kelly's attorney, Marc Martin.
After identifying himself and spelling his name, he gave the same answer to every question he was asked about where the tape came from, what he did with it and what he had written about Kelly.
To each question, he answered, "I respectfully decline to answer the question on the advice of counsel on the grounds that to do so would contravene the reporter's privilege, the special witness doctrine and my rights under the Illinois Constitution, and the First and Fifth Amendments of the U.S. Constitution."
Kelly's attorneys have repeatedly suggested during the trial that DeRogatis may have committed the crime of child pornography, alleging that he may have made a copy of the tape before passing it to police. An anonymous tipster left the tape in DeRogatis's mailbox in 2002.
Dunn argued that by answering any questions about the case in court, DeRogatis could lead himself open to state and federal prosecution. "While we may all feel, back at my law firm, that Mr. DeRogatis is an innocent man, as a lawyer you cannot take that risk," Dunn said. A "zealous prosecutor" could decide to charge DeRogatis, simply for seeing and possessing the tape, Dunn said.
Dunn also argued that DeRogatis was protected by the First Amendment and the Illinois reporter's privilege, despite the judge's earlier ruling. The judge's earlier ruling is under appeal, and the protections still applied while the appeal was being heard, he said.
Reporters sometimes had "hard choices" to make when pursuing stories, Dunn said, arguing that their job was to "pursue facts wherever they lead them."
He added, "Pursuing the facts in a child pornography case requires reporters to do a fine balancing act," noting that "if Mr. DeRogatis had not come forward with the tape...this prosecution would not have happened."
But urging Gaughan to force DeRogatis to testify, Martin argued that the statute of limitations protected DeRogatis from prosecution. Even if it didn't, DeRogatis should be offered immunity, he said. Arguing that the Illinois reporter's privilege and the First Amendment did not apply to DeRogatis in this case, he added, "Being a reporter does not give you a license to commit crimes."
Siding with Dunn, Gaughan said that he had no power to grant DeRogatis federal immunity. He said DeRogatis would not have to testify, also refusing the defense's request that DeRogatis be forced to assert his Fifth Amendment privileges in front of the jury.
DeRogatis will have to turn over his notes from an interview with Sparkle by 4 p.m. today, the judge said. Gaughan said he would review the notes in private to see if they reveal any of DeRogatis's sources.
"He's free to go," Gaughan said, concluding the hearing.
The defense has now begun presenting its case, calling its first witness.