CHICAGO — Though he tried to fight it, Chicago Sun-Times reporter Jim DeRogatis will be forced to testify in R. Kelly’s child-pornography trial, Judge Vincent Gaughan ruled when he issued a subpoena for the reporter on Friday (May 30). The defense, however, will not be allowed to ask DeRogatis about his sources.
In February 2002, DeRogatis (along with fellow Sun-Times reporter Abdon Pallasch) broke the story about the existence of the alleged Kelly sex tape, a copy of which he received from an anonymous source and later turned in to the police. Defense attorney Marc Martin argued that since the tape had been in DeRogatis’ “sole and exclusive possession,” they needed the reporter’s testimony to establish chain of custody. But more than that, he argued, the defense needed to establish whether DeRogatis tampered with or even created the evidence as part of his “extreme bias” against Kelly.
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“Mr. Kelly has a constitutional right to show that this person has a bias, a bias so strong that it helped a reporter violate the law,” Martin said.
“Did a reporter morph [the sex tape]?” Sun-Times lawyer Damon Dunn countered. “First you’d have to show that the tape was in fact morphed . And then you’d have to show that the technology necessary to do that was available to the reporter. And then you’d have to show that the reporter superimposed the images and got the contemporaneous soundtrack from radio broadcasts made years prior for this purpose. And then you’d have to show that this reporter distributed this videotape to other witnesses.”
Regardless, Dunn added, “Whether or not DeRogatis has a bias against pedophiles is of no importance to this case,” since it is not a defamation case.
Martin also claimed that in allegedly making a copy of the tape and showing it to witness Stephanie “Sparkle” Edwards in February 2002, DeRogatis committed a felony: possession of child pornography (which would seem to contradict the defense’s claim that the tape does not constitute child pornography ). If a crime were committed, Dunn countered, prosecution of that crime should come from the state, not the defense.
“What does this have to do with chain of custody?” Dunn asked rhetorically. “Nothing.”
Whether DeRogatis possessed a copy in February 2002 or not, he could not be charged, since the statute of limitations would have passed. That also means the reporter could not rely upon Fifth Amendment protection against self-incrimination.
“The law is clear,” Martin said. “The Fifth Amendment does not apply.”
Gaughan said the defense could seek DeRogatis’ testimony, within limits. The defense would not be permitted to ask him about how the tape was placed in his mailbox, or by whom. The defense would also have to narrow its question about whether DeRogatis possessed a copy of the tape other than the one he gave the police to just whether he had a copy, period. Any notes or memos made prior to and including February 1, 2002, would not be allowed, since that could put the source in jeopardy, but any materials relating to Sparkle would be allowed, “since she’s not the source,” Gaughan said.
Martin agreed that the defense would not seek DeRogatis’ source, “unless of course [DeRogatis] took the position that he lied in his articles and lied to the police and there is a known source.”
While the state and the defense were in the judge’s chambers discussing a separate matter, a fan approached Kelly sitting alone at the defense table and tried to give the singer a couple of CDs. Introducing himself as “a lawyer and a musician,” Mike Roman attempted to give the singer two albums for what he described as a Santana-like band. With an apologetic look on his face, Kelly refused to accept the CDs, telling Roman that there was a court decorum order and he wasn’t even allowed to talk to him. Bailiffs escorted Roman out of the courthouse when they realized he was talking to the defendant.
Find a review of the major players in the R. Kelly trial here . For full coverage of the R. Kelly case, see the R. Kelly Reports and check out this complete timeline of the events leading up to the trial.