A clearly annoyed Judge Vincent Gaughan skewered an attorney representing The Sun- Times when he argued Kelly's attorneys had not properly served a subpoena on DeRogatis and that the music critic wasn't compelled to testify until an appellate court rules on whether DeRogatis as a reporter can be compelled to testify.
"My understanding is when you file notice of appeal, reporter's privilege remains in effect," attorney Damon Dunn argued.
"That's nonsense," Judge Gaughan fired back.
Dunn also argued a Sun-Times secretary, not DeRogatis, was served with a subpoena to testify and therefore DeRogatis was not properly notified to appear.
Dunn argued DeRogatis shouldn't have to testify until an appelate court rules on whether doing so would violate Illinois' reporter privelage statute.
"If Mr. DeRogatis was a disgruntled fan, he'd be here to testify," Dunn argued. "If he testified as a reporter it would be a serious breach of his statutory rights as well as his Constitutional rights."
R. Kelly's lawyers say calling the reporter is critical to their case and the judge agrees.
"This is the tape that is subject of this whole prosecution and the source of that is Mr. DeRogatis. These are not reporter privileges. He is a material witness to a crime." the judge said before turning to prosecutors and asking, "Could you go forward if there wasn't a tape?"
"No," was their response. Kelly's attorneys promise they will not ask DeRogatis for any information about his source.
Still, the newspaper music critic may become a poster child for a First Amendment fight.
