Secrecy, Subpoena in R. Kelly Trial

The child pornography trial of R&B star R. Kelly drew media attention not just for its high profile subject and the salacious nature of the charges, but because it involved issues that are high on the list of media law concerns: trial secrecy and the subpoena of a journalist.

On June 13, 2008, a Chicago jury acquitted Kelly on all 14 counts of child pornography. According to The Associated Press (AP), the verdict came six years after Kelly was first charged with videotaping himself having sex with a girl that prosecutors argued was as young as 13 at the time.

During the weeks prior to the trial, media organizations fought to open pretrial records and proceedings after Cook County Judge Vincent Gaughan held a series of closed discussions with attorneys, placed court filings under seal, and placed a gag order on lawyers and others involved in the case.

According to the Chicago Tribune; the Tribune, Chicago Sun-Times, AP, and Chicago Public Radio filed an emergency motion April 24 to immediately open pretrial records and proceedings. Gaughan denied the emergency motion, scheduling a May 8 hearing instead, and eventually denied access to the sealed records and transcripts until after the trial’s conclusion in a May 16 order.

In the May 8 hearing, attorneys for both the prosecution and defense argued that opening pretrial records and transcripts to the public would jeopardize a fair trial. According to the AP, Kelly defense attorney Marc Martin warned that opening all records and transcripts would prompt sensational media reports, making it harder to select a jury and then for jurors to remain impartial during the trial. Assistant Illinois state’s attorney Mary Boland agreed, saying “Trials should be tried in the courtroom not in the newsroom.”

The media organizations’ attorney, Damon Dunn, argued the highly personal nature of the information likely to be revealed in the records did not justify the “secrecy draped over the case,” the AP reported. “Embarrassment is not a reason to close proceedings,” Dunn said.

Gaughan’s May 16 decision echoed the concerns of prosecutors and defense attorneys. “Of paramount concern is that the defendant gets a fair trial,” Gaughan wrote, according to the Sun-Times. “The torrent of media interest in this case has prompted entry of the order which prevents the serious and imminent threat that this case would be tried in the media.”

Media organizations also complained on the first day of jury selection, May 10, after they were mistakenly excluded from an introductory hearing and statements from the judge, prosecutors, defense attorneys and Kelly himself, as well as Gaughan’s reading of the indictment against Kelly, the Chicago Tribune reported.

According to the Tribune, when a media representative passed a note to the judge requesting that the hearing be stopped and the media be admitted into the courtroom, Gaughan’s response was “no, not right now.”

Gaughan later said he did not know the media had been excluded, the Tribune reported, and law-enforcement officials providing security acknowledged the mistake, saying the confusion was a result of “first-day jitters.”

Another concern for media commentators arose over the subpoena of Sun-Times reporter and music critic Jim DeRogatis. According to a May 31 Sun-Times story, DeRogatis broke the story of the existence of the Kelly sex tape in 2002 after he had received it anonymously in his mailbox, later passing the tape on to police.

Kelly’s defense attorneys called DeRogatis to testify about the tape, but DeRogatis appealed, arguing that compelling his testimony violated his right to a reporter’s privilege under the First Amendment and the Illinois reporter privilege statute, or “shield law,” 35 Ill. Comp. Stat. Ann. 5/8-901 et seq.

Judge Gaughan ruled May 30 that DeRogatis could not invoke the privilege because it only protects reporters from testifying and revealing their sources. He also ruled that DeRogatis must turn over any notes he took during interviews related to the tape.

However, Gaughan ruled June 4 that DeRogatis would not be required to testify because he was protected against testifying about his receipt and handling of the tape by his Fifth Amendment right against self-incrimination, according to the Reporters Committee for Freedom of the Press (RCFP). The defense argued that DeRogatis himself might have committed a crime by copying a tape that depicts child pornography. However, Gaughan’s June 4 ruling reaffirmed his decision that DeRogatis hand over his notes, the RCFP reported.

There was some confusion surrounding the status of the subpoena and its appeal. DeRogatis had been expected to appear to testify on June 3, but he did not show up. According to the RCFP, Sun-Times attorney Dunn argued that DeRogatis never received the subpoena, and also said the judge could not hold the reporter in contempt for failure to appear, because DeRogatis was in the process of appealing the subpoena. However, Gaughan said Dunn improperly filed his notice of appeal with the trial court instead of the appellate court, and that the appeal therefore could not be considered pending.

DeRogatis appeared in court the following day, where Gaughan ruled he was not required to testify under the Fifth Amendment, and he was not held in contempt.

According to the Sun-Times, commentators said the court’s narrow interpretation of the Illinois reporter privilege and its protection for reporters’ sources threatened to “chill” future reporting.

Jane Kirtley, director of the Silha Center and professor of media ethics and law at the University of Minnesota told the Sun-Times “The message that this sends journalists who cover these sorts of stories is that they do so at their own risk.”

– Patrick File
Silha Fellow and Bulletin Editor

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This page contains a single entry by cla published on October 14, 2009 12:51 PM.

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