CHICAGO — The judge in R. Kelly's child pornography trial warned a newspaper reporter who failed to appear in court Tuesday that he must show up Wednesday or face contempt charges.
Judge Vincent Gaughan rejected arguments from Chicago Sun-Times lawyers that music critic Jim DeRogatis' rights as a reporter would be violated if he were ordered to testify. The judge said DeRogatis wasn't asked to appear "as a reporter" but "as a material witness to a crime."
Gaughan said Tuesday morning that he would consider ordering DeRogatis' arrest, but later only issued a new order for him to be in court Wednesday.
DeRogatis received a sex tape in 2002, then turned it over to authorities. Prosecutors say the 27-minunte tape shows Kelly having sex with an underage girl and have charged him with child pornography.
A visibly angry Gaughan clashed with Sun-Times attorney Damon Dunn on Tuesday, saying he didn't accept that Illinois law granted DeRogatis a reporter's privilege not to appear while the issue was under appeal.
"I think you're making a little of Illinois law up today," he told Dunn.
Sun-Times lawyers told Gaughan they filed an appeal on the matter before Tuesday's hearing, but Gaughan said they had filed it in the wrong place. Dunn said he would push for an emergency ruling from the Illinois Appellate Court.
"If he testifies as a reporter, it would be a serious breach of his statutory rights and his constitutional rights," Dunn said.
If asked to testify, DeRogatis could invoke his Fifth Amendment right against self-incrimination and refuse to answer questions, Dunn said last week.
The judge gave jurors the day off Tuesday. The defense is expected to begin presenting their case Wednesday.
Kelly, 41, has pleaded not guilty to 14 counts of child pornography. Lawyers for Kelly, who faces 15 years in prison if convicted, say he is not on the video. They have also suggested his likeness may have been computer generated.
The judge said defense attorneys can't ask DeRogatis about his duties as a reporter, including about his sources.
Kelly attorney Marc Martin said Tuesday that the defense does not want to ask DeRogatis about his sources, but about whether he made a copy of the sex tape and later viewed it with a relative of the alleged victim in the case.