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