The former Chicago Sun-Times reporter whose work first drew national attention to allegations of sexual abuse of minors by R. Kelly is seeking to avoid becoming a witness at the R&B star’s federal child-pornography trial.
Music critic Jim DeRogatis filed a motion Tuesday quash a subpoena from lawyers for Kelly’s co-defendant and former business manager, Derrel McDavid, who sought to call the journalist to the stand.
“Because Mr. DeRogatis’ role has been as an investigative reporter, compelled testimony also is invasive as to his newsgathering methods and cumulative of the actual sources and their source materials,” lawyers for DeRogatis and his current employer, The New Yorker magazine, wrote in the filing.
Lawyers for DeRogatis asked to argue the motion Wednesday morning before the trial resumes.
The trial, at which Kelly, McDavid and former Kelly assistant Milton “June” Brown stand accused of conspiring to hide evidence and intimidate witnesses ahead of Kelly’s 2008 state court trial on child pornography charges, was postponed Tuesday by an “operational issue” that closed the downtown Dirksen Federal Building.
Officials later said the courthouse would reopen on Wednesday.
McDavid is expected to take the stand this week, which, DeRogatis’ lawyers note, would allow McDavid to testify about any interviews or statements he might have made to the reporter.
In the motion to quash the subpoena, DeRogatis’s lawyers wrote that any testimony he would give about the case has already been provided by witnesses who have already testified, including the alleged victim on the video, who testified using the pseudonym “Jane,” and the Chicago police detective who got the tape from DeRogatis some two decades ago. That tape, retired detective Dan Everrett testified, has since been lost from CPD evidence files.
The availability of other witnesses who can provide the same or better testimony than DeRogatis makes it unnecessary to make the reporter testify and potentially identify his sources, said Brendan Healey, a Chicago-based First Amendment attorney.
“Jim really drove the [R. Kelly] story over the years,” Healey said. “You need sources, whether they are confidential or not confidential, to feel comfortable talking to reporters.”
In 2000, DeRogatis received a VHS cassette of Kelly performing sex acts with an alleged 14-year-old girl from an anonymous sender, a tape he turned over to authorities and became key evidence in Kelly’s 2008 trial.
Lawyers for Kelly and McDavid have sought to draw attention to the muddied chain of custody of videos that have been shown to jurors in his current federal trial, which purportedly show Kelly sexually abusing an underage girl, but have changed hands among witnesses who have admitted to seeking payoffs from the singer for the tapes.
In motions filed ahead of trial, McDavid’s lawyers also sought records from prosecutors on what they called “strikingly odd” emails exchanged before Kelly’s indictment between DeRogatis and Angel Krull, an assistant U.S. Attorney who was assigned to Kelly’s case and since has withdrawn because of a family matter.
At the time, McDavid’s lawyers said emails turned over by prosecutors seem to show that DeRogatis shared a draft of his book, “Soulless: The Case Against R. Kelly,” with Krull, who used a pseudonymous email account for the emails and did not mention them in reports. Those motions to “put [DeRogatis’] reporting on trial” were denied, the reporter’s lawyers state.
DeRogatis, whose reporting alongside fellow Sun-Times reporter Abdon Pallasch, documented numerous lawsuits against Kelly that seemed to substantiate rumors swirling around the singer’s alleged abuse in the early 2000s. DeRogatis, now a professor at Columbia College and a reporter for The New Yorker magazine, has been Kelly’s most dogged journalistic pursuer.
DeRogatis was subpoenaed in 2008, but avoided testifying by asserting his rights under Illinois’ journalist shield law and the First and Fifth Amendments. There is no federal shield law for journalists, but the court should consider the damage that testifying could do to DeRogatis and his sources before compelling him to take the stand, Healey said.
“There are First Amendment freedoms at stake here,” Healey said after viewing a motion filed by lawyers for DeRogatis and The New Yorker. “When [reporters] have to talk about whom they talked to or what was said, that could have a real chilling effect on the reporter or on the source from talking in the future.”
