During her testimony, a stone-faced Kelly sometimes locked eyes with her, shaking his head at some points, and conferring with his lawyers at others.
Cross-examination found Adam Sr. at his most brutal. He portrayed Van Allen as yet another liar out to blackmail his client. “If it was the right thing to do,” he asked, why didn’t she go to authorities in 2002? “I was young then,” Van Allen said. Six years had passed since the indictment, Adam Sr. said, but “the spirit didn’t move you to do the right thing, this, until today?” She repeated she’d been focused on her infant daughter. Then the two got into the tale of one of the videotapes she’d made with Kelly.
Van Allen said she grabbed the video of her first threesome with Reshona from Kelly’s duffel bag when he left it on the sidelines of the basketball court at Hoops. “He carried it everywhere with him. Wherever he was at, the bag would follow,” she said on the stand. (“I just didn’t want that tape out there,” she further explained to me years later.) In March 2007, she told Kelly she’d taken the tape. He flew her and her hulking fiancé, Yul Brown, to Chicago, putting them up in a hotel near the Olympia Fields mansion. The singer offered her $250,000 for the tape, but she said she’d given it to Keith Murrell, a friend from Kansas City. Murrell, also known as “Casino,” sang with a trio called Talent that Kelly produced. It released one album, Bull’s Eye, on Kelly’s Rockland imprint with Interscope Records in 2001. It flopped.
Kelly’s “people” arranged a meeting with Van Allen and Murrell in the presidential suite of a downtown Chicago hotel, Van Allen said, and Derrel McDavid, the accountant who took over as Kelly’s manager when Barry Hankerson quit, gave her and Murrell $20,000 each after they showed him a copy of the tape. McDavid promised $210,000 more when they returned with the original tape, Van Allen said. She also mentioned another man in connection to that tape. A private investigator from Kansas City named Charles Freeman had apparently been hired in May 2002 as a subcontractor by Kelly’s chief private eye, Jack Palladino, to track down that videotape and others “on the streets.” The Kelly camp stiffed Freeman, paying him only $75,000 of a promised $140,000, and he sued the star in July 2002.
The day after Van Allen’s testimony, Freeman and Murrell—reporters covering the trial called them “Chuck and Keith from Kansas City”—promised to hold a press conference that would be “big news” and “reveal all.” The press conference never happened. Neither man was called to the stand, and what became of any other videotapes they had remained a mystery. (Nine months after the trial ended, in the spring of 2009, Freeman sued Kelly and his accountant Derrel McDavid a second time for failing to pay him everything they owed for his tape-tracking services.)
“In July 2007,” Adam Sr. said, “you tried to extort some money, claiming you had a sex tape of Mr. Kelly.” The witness stayed cool. “He tried to offer me money. I did not extort him,” though the scenario she herself described seemed to suggest otherwise.
When Van Allen left the stand, McDavid released a statement through Kelly’s spokesman, Allan Mayer. “Lisa Van Allen is an admitted thief and a liar, who wouldn’t know the truth if she tripped over it. If there was any crime committed here, it was her attempt to extort money from R. Kelly.” The Kelly camp did not deny it had paid Van Allen and Murrell, however, and it didn’t say anything about any of the other tapes the jurors had just heard about.
The prosecution rested its case with Van Allen, and Abdon and I compared notes as we huddled at the Sun-Times on the evening of June 3. Some of the state’s witnesses had contradicted themselves or behaved problematically, taking money from Kelly, or failing to promptly contact authorities. People are complicated; motives are complicated; sexual relationships are really complicated, and no victim is “perfect.” So many people Kelly considered friends seem to turn on him and shake him down for cash that we almost felt sorry for him, until we remembered it was his own behavior that left him vulnerable and put him in that position. The testimony echoed what we’d learned during years of reporting, that the star allegedly preyed on and manipulated young girls for his pleasure, in the process ruining lives and destroying families. Of course, thanks to Judge Gaughan, the jurors weren’t hearing evidence of that pattern of behavior, nor would they hear from several key witnesses who had been mentioned in court.
Prosecutors never called to the stand four men who’d been cited in sworn testimony in relation to tapes, shakedowns, and pay-offs: attorney William “Buddy” Meyers, who allegedly sent someone to Sparkle with the tape of Kelly and her niece; Keith “Casino” Murrell and private eye Chuck Freeman, who allegedly had something to say about at least one other videotape; and Kelly’s manager Derrel McDavid, who allegedly paid Van Allen and Murrell for that tape. Van Allen told me years later that prosecutors never seemed all that interested in the second tape showing the girl at the heart of their case, and they did not even try to track down that tape or any others (perhaps because Judge Gaughan would not have allowed them to be submitted as evidence).
Most curiously, the state never called Barry Hankerson, the former community activist and husband of Gladys Knight; Kelly’s ex-manager; Aaliyah’s uncle; Sparkle’s champion at Motown and with Toni Braxton, and, most important, the alleged head of the shadowy conspiracy to bring Kelly down. Hankerson told prosecutors he would refute that and answer any question if called to the stand, sources told me, but he never received a subpoena. In chambers, Judge Gaughan had sided with the defense. “The trial was never gonna get into the Aaliyah stuff,” a member of the prosecution team told me years later, while I struggled to connect the dots for this book. The state decided that if Hankerson could not testify about Aaliyah, there was no reason to bring him to Chicago. At the same time, a member of Kelly’s crew told me in a menacing tone, “He probably wouldn’t have made it to Chicago.” Really? “Barry’s alive still. The Minister protected him at one point. But the Minister won’t protect him anymore.”
By “the Minister,” that source meant Minister Louis Farrakhan, leader of the Chicago-based Nation of Islam. I’d heard from several sources over the years that Hankerson had a friendship with Farrakhan. I’d also heard from two sources, neither of them particularly reliable, that the courier who dropped the videotape in my mailbox on Grace Street “might have been a guy in bow tie”—a member of the NOI’s impeccably dressed paramilitary wing, the Fruit of Islam. I’d taken it as a joke or a red herring, but it stuck with me. When I asked about that comment years later, one of the two claimed not to remember it or know what I was talking about. The other said only, “Might have been.”
At the end of the prosecution’s case, the questions Abdon and I had were, where the hell were all of these other witnesses, and what about those other videotapes? But the question defense attorney Sam Adam Jr. planted in jurors’ minds had been the loudest. Where was the victim?
CHAPTER 11
THE DEFENSE AND THE VERDICT
Later in the evening of June 3, 2008, the day the prosecution rested its case in The State of Illinois v. Robert Sylvester Kelly, Abdon Pallasch and I had just finished comparing notes at his desk when city editor Don Hayner summoned me to a characterless, fluorescent-lit conference room in the paper’s new home at 350 North Orleans Street. When Lord Conrad Black’s newspaper empire began to crumble because of his securities fraud, his company sold the old, ugly but lovable barge-like building overlooking the Chicago River. We had all relocated to bland cubicles in rented space at the Apparel Mart, while the newest Trump Tower rose where the Sun-Times once stood.
I sat alone on one side of a conference table with several of the paper’s top executives arrayed opposite me. Looking decidedly grim were Hayner, Hook and Crook (editor Michael Cooke and publisher John Cruickshank), entertainment editor John Barron, who’d been at my side when we handed the now-notorious video to police, and Barron’s college buddy Jim McDonough, who’d been hired as the in-house lawyer for the corporate honchos. I’d been less tense walking into that room than the bosses appeared to b
e, assuming they had a solution to Judge Vincent Gaughan’s increasingly angry demands that I appear on the stand. Then McDonough extended a hand from the tailored sleeve of a charcoal suit.
“To be clear, I am here to represent the newspaper, not you.” After that, a cinder block between my chest and the pit of my stomach made breathing a chore.
My name first appeared on the witness list for the prosecution in 2004, during the interminable six-year-wait for Kelly’s trial to begin. State’s Attorney Dick Devine assured Hook and Crook that was strictly a formality, and I’d never be called to testify. I dropped off the prosecution list a few months later, but one day in early 2006, Abdon Pallasch tossed a document from the Kelly camp on my desk. “Look at this.” I had reappeared on the witness list for the defense. Abdon seemed jealous that they wanted to hear from me and not from him, but only one of us had gotten the tape that led to the star’s indictment dropped anonymously in his mailbox. Lucky me.
“Don’t worry about it, DeRo,” Hayner said many times over the next two and a half years. “You’ll never have to testify.” Now, finally, everybody worried about it.
The phrase “reporter’s privilege” refers to the concept as well as the patchwork of federal and state laws allegedly protecting reporters from being compelled to testify about confidential sources. Before my name began appearing on witness lists, I hadn’t thought about it since I majored in journalism at NYU. New York Times reporter Myron Farber had visited one of my classes to talk about his role in the notorious “Dr. X” case. In 1966, surgeon Mario Jascalevich became the suspect in a series of suspicious deaths by curare poisoning at a hospital in New Jersey. The case lay dormant for a decade for lack of evidence, but after Farber received an anonymous letter citing as many as forty poisonings, the reporter began investigating. His story prompted prosecutors to revisit the cold case, and they eventually charged the man the Times called “Dr. X” with five murders.
During the trial, the defense subpoenaed Farber for his notes from 193 interviews. The judge allowed what the Times called “an unprecedented fishing expedition,” and the paper refused to comply. Sentenced to six months in jail and fined five thousand dollars a day, Farber spent forty days behind bars, and the paper paid nearly a million dollars in legal fees and penalties. Jurors eventually acquitted the doctor, though he lost his license and died in disgrace. Governor Brendan Byrne pardoned Farber and ordered the return of the fines, but the episode hardly stood as a victory for the free press.
Conflicted about his ordeal, Farber hadn’t been a particularly inspiring speaker, but in the heady days of journalism a decade or so after the Pentagon Papers and Watergate, my classmates romanticized his principled stand. Some of us even hoped we’d have a chance to do the same. In fact, the press generally avoided conflicts with the courts, wary of setting further precedent. In the 1972 case of Branzburg v. Hayes, stemming from a Kentucky reporter’s refusal to reveal his sources about the local drug trade, the Supreme Court split five to four, ruling the First Amendment does not exempt journalists from testifying. The majority couldn’t find a reporter’s privilege in the Constitution. Some scholars say there isn’t one, while others believe that case simply didn’t warrant it.
“The opinion is regarded today as a muddle; it does not make clear how much protection journalists deserve,” Steve Coll, dean of the Columbia University Graduate School of Journalism, wrote in The New Yorker. Subsequent rulings by the lower courts were contradictory. In 1981, the Washington, D.C., Circuit Court of Appeals ruled that Michigan journalists did not have to testify about a Detroit mobster because their information also appeared on government tapes. But in 2003, the Court of Appeals for the Seventh Circuit in Chicago reaffirmed the majority in Branzburg in the case of McKevitt v. Pallasch. That’s Pallasch as in my partner, Abdon.
Abdon had done stories interviewing an informant who infiltrated the Irish Republican Army. The court ordered him to turn over those tapes, and he vowed he’d never do it. “I’ve never had a reporter as eager to go to jail for the First Amendment as Abdon,” Hayner told me. My buddy didn’t deny that, but ultimately, he complied with the judge’s order, turned over his tapes, and avoided being jailed for contempt of court.
Since my own charcoal suit was five years old, ill-fitting and not nearly as snazzy as the company lawyer’s or even any of Abdon’s when I got married in it in 2003, my wife, Carmél, convinced me to buy a new one. I’d have it for family weddings or funerals, she said, though hopefully I wouldn’t have to wear it to court. We nevertheless cancelled the trip to Spain we’d been planning for years because the dates clashed with the start of the Kelly trial.
The concept of Reporter’s Privilege had tarnished considerably when I began closely following cases in the news during the wait for Kelly’s trial. In 2005, discredited New York Times reporter Judith Miller spent eighty-five days in jail for refusing to disclose the source who named CIA agent Valerie Plame after she exposed the fallacy of weapons of mass destruction in Iraq. The next year, two reporters from the San Francisco Chronicle drew a sentence of eighteen months after refusing to name the source of leaked grand jury testimony about a company providing illegal steroids to baseball players Barry Bonds and Jason Giambi. The reporters only avoided jail when their source, the company’s former attorney, pleaded guilty to leaking, lying, and obstructing justice.
Protecting sources as ethically dubious as the lawyer for the steroids company and Scooter Libby, Vice President Dick Cheney’s felonious chief of staff, didn’t seem worthy of going to jail, but I would not compromise the people who had spoken to me off the record during my eight years of reporting about Kelly. They requested anonymity for the best reasons whistle-blowers ever do, because they feared a powerful man might hurt them if they spoke publicly. Still, I’d done enough reporting on conditions at the Hudson County Jail earlier in my career at the Jersey Journal to have lost any romantic illusions about being locked up, and that loomed as a very real possibility, given Judge Gaughan’s notorious temper.
“Kelly’s lawyers have figured out a new defense strategy: make sure the singer isn’t the only one on trial,” Jennifer Vineyard, one of the sharpest reporters covering the trial, wrote for MTV News. The defense painted Sparkle as an angry former employee seeking revenge by blackmailing Kelly. They hinted that ex-manager Barry Hankerson was the puppet master behind Sparkle and a conspiracy to destroy the singer, and they’d try to say I was part of it, too. They also would imply that I had “committed a crime by allegedly making and keeping a copy of the sex tape,” Vineyard wrote. The irony didn’t escape her, since another part of their strategy was to argue the tape wasn’t child pornography at all.
‘The logic of their motion escapes me,” media attorney Damon Dunn told Vineyard in one of my two favorite quotes by him through all our years of working together. The other came after one of his several spirited arguments to quash my subpoena, when the defense said Kelly had a constitutional right to show that I had “written articles critical of Kelly.” I was, after all, a music critic, but that didn’t mean I was not a judiciously fair reporter. In any event, Dunn said, “Whether or not DeRogatis has a bias against pedophiles is of no importance to this case.”
A soft-spoken, silver-haired, immaculately groomed Galahad to many journalists in Chicago, Damon Dunn had argued dozens of First Amendment and media-law cases for the Sun-Times and other news organizations in seven state supreme courts. More cynical in unguarded moments than the most grizzled reporter about how the system could be rigged, he nevertheless retained his idealism, and like city editor and law-school grad Don Hayner, he believed I would not have to take the stand. On May 30, early in the Kelly trial, the judge rule that, indeed, I would. Dunn continued to file motions to block the inevitable, and Gaughan got testier and testier as I failed to materialize in court, threatening to throw not only me in jail for contempt, but Dunn, too.
On June 2, Judge Gaughan announced that I’d be arrested if I did not appear before him at t
en the next morning. That night, Sun-Times music editor Thomas Conner called my wife, Carmél, and told her she shouldn’t answer our door at home for anyone, in case the judge jumped the gun and sent sheriff’s officers to fetch me. When I didn’t appear again on June 3, Gaughan really lost his temper, but Dunn protested I’d never personally been served with a subpoena. (I only finally got a copy from him in 2018.) “I’m going to give DeRogatis the benefit of the doubt,” the judge reluctantly decided. Stifling his anger, he emphasized that if I didn’t show up in court on June 4, he’d order Cook County Sheriff Tom Dart to arrest me. Which brought me to that conference room full of dour faces on the evening of June 3.
“You’ve got three options, DeRo,” Hayner began. “One, you can testify—it’s your choice as a citizen—but it would set a bad precedent for other reporters in Illinois, and maybe nationally. And you should know that you can’t pick and choose which questions to answer. If you answer one, even your name, you’ll have to answer them all, and if they ask you about your sources . . .” He trailed off and let the unspoken conclusion hang over the conference table: If I were asked about sources and I refused to name them, I’d be held in contempt.
I asked about the other options, trying to sound courageous, cinder block be damned.
“Well, you could go underground,” Hayner said. My jaw dropped; that sounded so damn sixties! “Leave town, go to Michigan or Wisconsin, wherever, but don’t tell us where you are, don’t go online, and don’t answer your phone. You can come back when the trial is over, but you should be aware that Judge Gaughan may still throw you in jail for contempt when you get back.” I briefly considered the appeal of my in-laws’ retreat in Indiana farm country, but I didn’t like the odds of testing Gaughan’s wrath. Plus, a true city kid, I’ve always gotten antsy without concrete underfoot.
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