Jim DeRogatis, the Sun-Times reporter who was anonymously delivered a copy of the R. Kelly sex tape for which the singer is currently on trial, did not show up to testify Tuesday. The judge debated on whether to throw him in jail and then decided to give him the benefit of the doubt and ordered him to show up today, Wednesday.

It’s not known whether he will show up, or what the judge will do if he doesn’t.

———–

Everything you need to know about the R. Kelly case.

———–

Josh Levin of Slate has a new post about yesterday’s events here.

———–

The Chicago Tribune has a story about the five biggest hurdles for the case for the defense, which is supposed to begin today. The first two:

•Mole, mole, mole: The defense told the jury during opening statements that the sex tape at the heart of the child pornography case would actually set Kelly free. Attorneys said Kelly has had a dark mole along his lower spine since childhood, but said the man in the tape has an unblemished back. A prosecution expert, however, showed the jury a freeze-frame image of the man’s back and there appeared to be a mole. Look for the defense to call its own video expert to dispute that.

•That’s what friends are for: Three former friends of Kelly’s alleged victim identified her as the female participant in the video. The young women, who are now in their early 20s and went to grade school in Oak Park, were adamant in their identifications, and no one suggested they had an ax to grind. The defense will counter their testimony by continuing to paint Oak Park as a place where normally bored residents leaped at the chance to take part in the seedy case.

For its part, the Sun-Times goes into detail about some legal comedy behind the scenes in the DeRogatis affair yesterday. The judge, for example, yelled at the Sun-Times lawyers for filing their appeal of his DeRogatis-must-testify ruling in the wrong court. The paper’s lawyers say the judge was wrong:

“You filed it in the wrong court. If you’re going to file a notice of appeal, you have to file it in the appellate court,” [Judge Vincent] Gaughan said.

But several appellate lawyers said the Sun-Times’ lawyers filed in the right place. Illinois Supreme Court Rules 303 and 606 call for notices of appeal to be filed with the circuit court, not the court of appeals, they noted.

“He’s just wrong,” said lawyer Joel Bertocchi of Hinshaw & Culbertson, former solicitor general of Illinois. “He’s just making a common mistake.”

———-

The Daily Swarm has a piece discussing who left the tape in DeRogatis’s mailbox originally. Some provocative speculations!

An unanswered question from the prosecution’s case: Why didn’t the defense ask each witness whether they had left the tape for DeRogatis?

———–

Earlier, the Sun-Times lawyer argued Tuesday afternoon that the reporter—technically—didn’t get a copy of the subpoena.

The judge argued that, technically, he could throw DeRogatis’s ass in jail in the meantime.

The judge, Vincent Gaughan, seemed to think that telling the Sun-Times attorney multiple times over the last week that he expected DeRogatis to be in court Tuesday a.m. had been warning enough.

———-

Hitsville is not a lawyer and doesn’t know whether the paper and DeRogatis have the law on their side. On the one hand, DeRogatis was handed a key—the key—piece of evidence in the case, and the defense has the right to determine the provenance of it, even if the testimony is, predictably, “We got it, we watched it, we called the police.”

But the issue is complicated. For one, DeRogatis is not, as the New York Times and the Chicago Tribune have been describing him, merely a “music critic.” He is a reporter, and he and his colleague, Abdon Pallasch, had been filing major investigative pieces on Kelly’s sexual proclivities a year before the tape came to light.

That original blockbuster story is here. The pair’s original story about the tape, more than a year later, is here.

That’s why DeRogatis was delivered the tape—and that makes his receipt of it part of news-gathering activities that should not be exposed to scrutiny by a court, particularly when they have nothing to do with the crime being charged, which was the actual filming of the video some years before.

Some of the questions about his appearance have been answered in court over the past few days. But others haven’t. Here, for example, is a Sun-Times posting about his testimony:

Gaughan said Kelly’s attorneys will be allowed to question DeRogatis about when he received the tape and what he did with it before turning it over to police. But the judge said they cannot ask whether he made a copy or ask any questions about his sources.

Aren’t those two sentences contradictory? The issue of whether DeRogatis made a copy is key because the defense has been making noises that those who have testified on court about having seen the tape should be charged with possessing child pornography.

As Hitsville has written, this is an interesting legal position. (Isn’t it stipulating the prosecution’s case for defense attorneys in any way to acknowledge that the tape might be child porn? That’s what Kelly’s on trial for, after all.)

Beyond that, the judge has apparently ruled that DeRogatis must turn over notes from his interview with Stephanie “Sparkle” Edwards. Again, from the papers it isn’t clear why these notes would be relevant. The tape was made years before DeRogatis interviewed Edwards—and DeRogatis’s reporting isn’t on trial.

On the other hand, the Chicago Tribune reported that testifying about the tape would not expose DeRogatis to possession of child porn charges—but only because the statute of limitations has apparently expired.

———-

The Daily Swarm is also following the R. Kelly case, and Jim DeRogatis’s situation, closely.

———–

Disclosure: Hitsville is an old friend of Jim DeRogatis; we started the radio show “Sound Opinions” together.

———–

Earlier in Hitsville:

Everything you need to know about the R. Kelly case

R. Kelly Sexfacts™ IV: The Quantum of Solace! The complete prosecution case!

The Godfather Who Shagged Me: The complete R. Kelly SexFacts™, Parts I, II & III—Every barfy thing you ever wanted to know about the origins of the R. Kelly case

Targeting Jim DeRogatis—literally

More on L’affaire DeRogatis

The DeRogatis ruling

Bad craziness at the R. Kelly trial?

At the R. Kelly trial, they do things they don’t do on Broadway!

Ever hear the one about the guy convicted of murdering his parents who asked for mercy because he was a orphan?

The NYT and R. Kelly: Curiouser and curiouser

The NYT finally notices R. Kelly isn’t a nice guy

R. Kelly and the NYT: The Freaky Defense

Tribune, Sun-Times protest closed hearings in R. Kelly case

Secret hearings in the R. Kelly case

R. Kelly’s Publicist: He slept with my daughter!