Sun-Times critic won't face arrest warrant for failing to appear

Chicago Tribune staff report

There will be no jail time for Jim DeRogatis, but the R. Kelly trial judge ordered the Sun-Times music critic to come to court Wednesday.

A subpoena had been issued compelling him to appear Tuesday, but DeRogatis never showed.

The newspaper argued the renowned music critic never received the subpoena, though a Sun-Times reporter, attorney and the editor-in-chief's assistant all received legal documents indicating he was expected in court, according to statements made before Cook County Judge Vincent Gaughan.

Gaughan said it was possible DeRogatis was unaware of the ordered appearance and would not issue a warrant for his arrest.

"I'm going to give him the benefit of the doubt," Gaughan said.

Gaughan ordered DeRogatis to appear Wednesday so the defense can question him in front of the jury about his connection to the sex tape at the heart of the case. DeRogatis, who first wrote about Kelly's relationships with young girls in 2000, received the video from an unknown sender in early 2002.

The critic turned the tape over to the Chicago police, prompting an investigation that eventually led to child pornography charges against the singer.

The Sun-Times contends DeRogatis is protected by the reporter's privilege and is not required to testify about information he gathered as a journalist. The judge, however, has ruled he is connected to the trial's most critical piece of evidence and can be questioned.

"He's a material witness," Gaughan said. "He turned over [the sex tape], which is the basis of this prosecution."

The Sun-Times intends to appeal the judge's decision and ask the appellate court to bar DeRogatis from being called as a witness until the matter is settled. Gaughan said he will not delay the testimony unless a higher court orders him to do so.

"I have 15 people in the jury box and this trial is into its fourth week," Gaughan said.

Stacy St. Clair

June 3, 2008 2:04 PM: Newspaper's attorney files appeal on critic's behalf--with the wrong court

Arguments continue over whether Sun-Times music critic Jim DeRogatis will have to appear today before the trial judge in the R. Kelly child pornography case.

Sun-Times lawyer Damon Dunn reasserted that it would be a "serious breach" of DeRogatis' rights if he were compelled to testify as a reporter and said he had appealed last week's decision by the judge ordering the critic to testify.

Kelly's defense team wants DeRogatis to testify about the sex tape at the center of the prosecution's case. Specifically, defense attorneys are interested in what DeRogatis may have done with the tape between the time he received it in early 2002 and when he gave it to police.

Dunn asserted that the Illinois reporter's privilege statute protects the critic from having to testify while an appeal is pending. The judge pointed out, however, that Dunn's notice of appeal was filed to the wrong court—at the Daley Center—and as such is not really on file at this point.

"You filed it in the wrong court," Gaughan snapped. "A notice of appeal has to be filed at the appellate court." Gaughan also rehashed his finding that DeRogatis is not protected under the law as a reporter because he is a "a material witness to a crime" and is not protecting a source.

In his opinion issued Monday, Gaughan said the defense could not ask about the source of the tape and that Kelly attorney Marc Martin said the defense had no plans to ask about the source.

"You're protecting something that nobody is after," Gaughan said to Dunn.

But Dunn argued that the protection of a source is at issue and offered his motion for a notice of appeal to the court and to all parties present.

Court was adjourned so all parties could read the appeal, which had still not been officially filed.

Azam Ahmed

June 3, 2008 12:21 PM: Warrant could be issued for critic's arrest

Court resumed--and still no Jim DeRogatis.

Cook County Judge Vincent Gaughan, an animated jurist known for having a short fuse with lawyers, appeared subdued and spoke in short, clipped sentences when addressing Sun-Times lawyer Damon Dunn. The newspaper argued that DeRogatis had not been properly served the subpoena and therefore had no obligation to be in court this morning.

"I'm not sure why this [hearing] was called," Dunn said.

"It's [to decide] whether to issue a warrant for your client's arrest," Gaughan responded.

The Sun-Times argued that the judge cannot hold the music critic in contempt while he's appealing the subpoena, which they contend he never received anyway. Gaughan called a 20-minute recess for Dunn to present him a copy of the law to that effect.

We'll be back with an update when the hearing ends.

Stacy St. Clair

June 3, 2008 11:18 AM: Sun-Times music critic fails to show up for court appearance

Sun-Times music critic Jim DeRogatis failed to show up for his court appearance in the R. Kelly case this morning, defying the judge's order to appear.

Sources say DeRogatis never received the subpoena issued by Cook County Judge Vincent Gaughan and called to say he would not be coming to court.

Gaughan, however, repeatedly told defense attorneys and prosecutors Monday to make sure DeRogatis and Sun-Times lawyer Damon Dunn knew they had a 10 a.m. appearance scheduled.

Sources familiar with the delay said the no-nonsense Gaughan believes that DeRogatis has thumbed his nose at the court by ignoring the spirit of the subpoena. Even if he was never served with the paperwork, the source said, the judge believes DeRogatis and the newspaper's attorneys are aware the judge wanted him to appear today for proceedings outside the jury's presence.

The judge, looking extremely unhappy, left the building around 10:20 a.m. He has ordered court to resume at 11:20 a.m. Gaughan ruled last week that DeRogatis—who provided police with the sex tape at the heart of the case more than six years ago—must testify in the case. The judge has said the critic is not protected by the 1st Amendment in this instance because he is the first person known to have possessed the video.

The ruling, which was issued in writing Monday, allows the defense to question him about what he may have done with the VHS cassette between the time he received it and when he handed it over to authorities.

The Sun-Times indicated that it would appeal the decision. It's unclear how an appeal would affect the trial, though the defense is expected to begin calling witnesses next week. Gaughan will not allow the defense to ask DeRogatis about his sources or subpoena any reporting notes he took before he gave the tape to a law-enforcement official, according to the ruling.

Dunn told the court last week that DeRogatis may invoke his Fifth Amendment right against self-incrimination and refuse to answer questions under oath.

The critic, who first wrote about allegations of Kelly's inappropriate relationships with teenage girls in 2000, received the sex tape anonymously in early 2002. The defense intends to question DeRogatis about whether he manipulated the video. A prosecution witness last week said such editing would be almost impossible for a 27-minute tape.

Stacy St. Clair

June 3, 2008 5:25 AM: Now it's R. Kelly defense's turn

Now that Lisa Van Allen has testified about a three-way sexual encounter with both Kelly and the alleged victim depicted in the sex tape at the center of the pornography trial, the defense most likely will call witnesses to discredit her. But not until Wednesday.

Among the most damning of those witnesses could be Van Allen's ex-boyfriend, Damon Pryor, a 33-year-old Georgia man who came forward last week claiming he had information that could undermine her testimony.

During court proceedings Monday, we got a sneak preview of what he'd say under oath. Pryor apparently gave a deposition Thursday in which he said Van Allen and two others plotted to blackmail Kelly with the sex tape. He also told attorneys that he and Van Allen—who share a 5-year-old daughter—watched the sex tape and Van Allen told him that the male participant wasn't Kelly.

Van Allen, 27, denied the allegations on the stand and said she was sure it was Kelly in the video.

The defense acknowledges Pryor is no saint. He has been convicted on federal fraud charges and had a list of aliases and fake Social Security numbers he has used to steal people's identities, according to testimony.

He also tried to interject himself into the federal child molestation trial of cult leader Malachi York in 2004, but was not allowed to testify. The defense contends that he told Van Allen the best way to make a splash in a high-profile case was to wait until the last minute and then come forward with claims of critical information.

Van Allen disputed the accusation, saying Pryor was a liar. When the defense suggested she thought enough of him to give birth to his child, Van Allen rolled her eyes.

"Yes," she said. "My mistake."

Kelly defense attorney Sam Adam Sr. noted that both Pryor and her current fiancé, Yul Brown, have fraud convictions.

"What, do you have some thing where guys have to have some federal fraud charge before you are interested in them?" Adam quipped.Many in the courtroom, including Van Allen, laughed.

"I see you laughing, is that funny?" Adam asked.

"No," Van Allen responded.

After all the drama Monday, Cook County Judge Vincent Gaughan gave the jury today off. The defense will begin calling witnesses on Wednesday, after taking care of a few housekeeping matters—including more discussions concerning Sun-Times music critic Jim DeRogatis' subpoena—this morning.

June 2, 2008 5:37 PM: Defense paints witness as profit-seeker

Defense attorney Sam Adam Sr. painted prosecution witness Lisa Van Allen as a schemer with a penchant for shady boyfriends whose fiance pulled the strings in a plan to extort money from R. Kelly.

Adam asked Van Allen, 27, who had said earlier that she came forward because it was "the right thing to do" why she didn't do so much earlier, like in 2002 when Kelly was first charged.

"I was young," Van Allen said.

"You were younger yesterday, that's not the question," Adam responded.

Van Allen went on to say that she had just given birth to her daughter and had no interest in getting involved with a high-profile legal case.

The questioning then turned to Van Allen's skills in choosing a mate. Turns out both her former boyfriend, defense witness Damon Pryor, and her fiance, Yul Brown, were convicted on federal fraud charges.

"What, do you have some thing where guys have to have some federal fraud charge before you are interested in them?" Adam quipped.

Many in the courtroom, including Van Allen, laughed.

"I see you laughing, is that funny?" Adam asked. "No," Van Allen responded.

Adam went on to ask Van Allen whether she told Pryor, a defense witness, that the sex tape at the heart of the case was part of a scheme with two associates to extort money from Kelly. Her part in the plan, Adam said, was to go to Kelly and arrange for payment.

Van Allen denied the allegations.

Van Allen also denied approaching Kelly in July 2007 to get money for a tape purported to show her, Kelly and the alleged victim having sex. She said Kelly offered her $250,000 to help him "recover" the tape. She testified that she arranged for Kelly to get the tape but was only paid $20,000.

Later, Adam asked Van Allen about the February arrest of Brown on gun and drug charges. Brown, who Adam said faced 22 years in prison, pleaded guilty and received probation shortly after arranging for Van Allen to come forward to testify against Kelly.

Adam went on to accuse Van Allen and Brown of trying to extort money from his son, attorney Sam Adam Jr., who traveled to Atlanta to interview her upon learning that she was planning to testify for the prosecution.

Adam asked Van Allen whether Brown said, "Kelly has three options to rectify this situation so Lisa would not have to go to the authorities," adding that she had a $300,000 offer for a book deal. Van Allen denied the accusations.

Van Allen went on to say that she knew nothing of accusations that Brown tried to broker a deal with Adam Jr., saying that "Kelly knows what he has to do to make this right."

After the cross examination, the prosecutor rested its case. The defense is expected to start giving its case Wednesday. On Tuesday, Chicago Sun-Times music critic Jim DeRogatis--who provided the police with the sex tape at the heart of the case--is expected to be questioned by Kelly's attorneys.

Kayce T. Ataiyero

June 2, 2008 3:45 PM: Witness tells of 3 sexual encounters

After several delays, including a brief one this morning, the prosecution's key witness gave explosive testimony Monday.

The prosecution's key witness in the trial of singer R. Kelly on child pornography charges told jurors about three sexual encounters she had with Kelly and the alleged victim in the case.

In just under one hour of testimony, Lisa Van Allen, 27, also identified Kelly and the alleged victim on the videotape that is the central piece of evidence in the trial.

Van Allen, who was 17 when she first met Kelly, testified to a sexual encounter with the underage girl in 1998, 1999 and in 2000. Two of those encounters were videotaped, she said, though neither tape is the one at the center of the prosecution's case.

Van Allen, now engaged and the mother of a 5-year-old-girl, first met Kelly at the video shoot for "Home Alone" in late 1997 or early 1998, where after a brief introduction the two engaged in sexual intercourse, she testified in court today.

After exchanging phone numbers, Van Allen, of Georgia, started flying to Chicago to visit the recording artist, dividing her time between a hotel room paid for by Kelly and the studio where he recorded his music. By the summer of 1998, the 17-year-old quit her job in Georgia and moved to Chicago to be with Kelly, she testified.

She attended his performances and went on tour with him, in addition to occasional outings to the mall for shopping, she said.

Then in late 1998, Van Allen testified she met the alleged victim. Their first encounter was sexual, she said, and took place with Kelly in the log-cabin themed room of his former home in Chicago.

The singer videotaped the encounter, she said.

"He had a stand, and he set it up ... and directed it toward where we were," she said under direct examination from the prosecution. "[He] told us where to sit and basically what to do."

After the first encounter, she occasionally saw the alleged victim at Kelly's music studio, Van Allen said. Then a year later, she said, they all met up again at the singer's house, where the three engaged in intercourse on a black futon set up on the singer's basketball court.

Van Allen said Kelly again set up a video camera and pointed it at the mattress. But this time, Van Allen started crying, she testified.

"I didn't want to do it," she explained in court. "[Kelly] stopped everything and put up the camera and we left."

The last encounter between the three took place in 2000 in Kelly's trailer at the video shoot for "A Woman's Threat" in Chicago, she testified.

She said Kelly recorded the encounter, as well, though it was interrupted when someone came knocking on the trailer door.

"[The alleged victim] had to run into the bathroom naked" because Kelly did not want her to be seen, Van Allen said.

The prosecution made clear that neither this tape nor the other recordings she testified about were the tape shown to jurors during the trial.

Van Allen said she had never seen that tape before prosecutors showed it to her last week. But her identification of the participants in the video was unequivocal: the alleged victim and Kelly.

She said the tape was probably made in 1998, the same year she was first filmed with the alleged victim and Kelly, because "they both looked exactly the same way."

Van Allen added that she recognized the room where the encounter between the alleged victim and Kelly took place as the log cabin-themed room. Van Allen testified that Kelly kept all of his tapes with him at all times and put them in a black duffel bag.

"If he was in the studio, it was in the studio with him. If he went to Hoops [basketball court], it went to Hoops with him," she said. "The bag would follow him."

Van Allen testified that in 2001, she left Kelly and returned to Georgia. She maintained contact with the singer, though, and he visited her in Atlanta.

During one visit, she testified, she stole his Rolex watch.

Defense attorneys had previously mentioned the theft, and they are likely to hammer away at her during cross-examination. The defense is expected to attack her credibility as a witness, citing her theft and other charges leveled against her.

As for her reasoning for coming forward: "It was the right thing to do." She was also given state and federal immunity for testifying in the case, Van Allen said.

The defense is likely to question her motivation, given that she waited several years after the indictment was announced before coming forward.

Van Allen admitted on the witness stand that she had been in jail for a month after a fight with another woman when she was 19. She also acknowledged she spent two days in jail for a domestic battery charge in 2006 after finding her boyfriend with another woman.

Kelly's attorneys are expected to accuse her of offering to switch her testimony for a price. The defense team has described it as an extortion attempt, and unsuccessfully petitioned Cook County Judge Vincent Gaughan to compel the prosecution to file criminal charges against her.

Azam Ahmed

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