CHICAGO — R. Kelly's lawyers have figured out a new defense strategy: make sure the singer isn't the only one on trial.
In a hearing separate from Kelly's child-pornography trial (the jury has Fridays off), the singer's defense attorneys asked that Chicago Sun-Times reporter Jim DeRogatis — who received the tape from an anonymous source in 2002 and turned it over to police — be compelled to testify, implying that he may have committed a crime by allegedly making and keeping a copy of the sex tape at the heart of the case. Assistant State's Attorney Shauna Boliker also revealed that the defense had asked the state to file criminal charges against some witnesses.
THE R. KELLY TRIAL: IN BRIEF
Which witnesses the defense wants charged, and for what crimes, remains unknown, as that portion of the hearing was held in the judge's private chambers and is considered sealed. But charges of either possession of child pornography or perjury are the most likely, considering how Kelly's defense team hammered away this past week at witnesses who either had or held viewings of the sex tape, yet did not immediately contact the police. (One witness, Stephanie "Sparkle" Edwards, denied that she had held viewings for family members, despite her brother's and his ex-wife's testimony that she had.)
It might seem like the defense would be shooting itself in the foot to make such an argument — after all, Kelly's case hinges on the belief that the tape is not child pornography and, therefore, not a crime. Wouldn't it undermine the defense's own case to insist that the tape be considered child porn and anyone in possession of it be charged with a crime?
"The logic of their motion escapes me," Sun-Times attorney Damon Dunn said outside the court.
As for DeRogatis, the reasons the defense wants him to take the stand kept changing. At first, defense attorney Marc Martin told the court that DeRogatis must show the chain of custody of that tape.
"But you're not operating in a vacuum," Judge Vincent Gaughan countered. "That's in the police report. I want to know what you expect to get from this witness."
Then Martin revealed that he thought DeRogatis had committed a crime. "After he gave the tape to Detective Dan Everett," Martin alleged, "he kept a copy. Somehow, he had possession of a copy, and he watched that tape with Stephanie Edwards, after the tape had been tendered to the police."
"Nobody has proved that he had [kept a copy], as far as I know," Dunn countered.
Martin said knowing who had a copy and when was "critical to our defense," and that DeRogatis shouldn't have First Amendment protection for his actions, since it wasn't under his function as a reporter that they wanted him to testify. However, Dunn said that DeRogatis would indeed assert his reporter's privilege against testifying. And Boliker said she didn't see how DeRogatis' testimony would be relevant to the case at hand.
Martin then said the defense needed DeRogatis' testimony to "impeach Stephanie Edwards," since she gave contradictory testimony. Martin argued that Kelly had a Sixth Amendment right to call witnesses.
"You don't have a right to call everybody," Gaughan said. "Otherwise, the trial would last to infinity."
Gaughan set the next hearing about the matter for May 30, at which point he will make his ruling whether DeRogatis will be compelled to testify. Kelly's trial will continue Tuesday.