Cooke piped up enthusiastically when I asked about the final option. “If you show up tomorrow and refuse to testify, you’ll go directly to jail, but I think you should wait in the newsroom until the sheriff’s officers come for you, and we’ll put the story and the photos on the front page!”
Frantically brainstorming with a then–junior partner, Neil Rosenbaum, in search of any other option, Damon Dunn joined the meeting late on a tinny speakerphone from the Loop offices of Funkhouser Vegosen Liebman & Dunn. Unlike the company lawyer, he was representing me (as well as the paper), and I appreciated my bosses for paying his bills. “Jim, you don’t have to decide now,” he said. “Give us the night and we’ll keep working on this.”
When I got home, Carmél picked out a tie for me.
At 7 a.m. on June 4, after a long and sleepless night, I gathered in Cooke’s office with Dunn, Rosenbaum, and Hayner. As promised, Dunn had stayed up all night and hit upon a solution he called “the nuclear defense.” The law views child porn as such a radioactive crime, he said, that admitting I’d touched much less watched the videotape meant admitting I’d committed a felony. Though I would have to appear in court, I could plead the Fifth Amendment and decline to testify because I had the right not to incriminate myself, just like every mobster and crooked politician I’d covered in Jersey.
Dunn showed me an index card he’d prepared, which he said I should read in response to every question. That solution sounded good, but I said I intended to stress the First Amendment over my Fifth Amendment rights. “Gaughan has ruled on this, Jim, and if you do that, and keep doing it after he tells you to stop, he will hold you in contempt.” I said I’d drawn my line in the sand. Hayner gave me a sort-of hug, a most un-Hayner-like gesture.
I reread the card several times as we drove to Twenty-Sixth and Cal, but I was too nervous to memorize it. A dozen photographers and TV cameras captured me walking into the courthouse. My legs felt rubbery, but I tried to appear confident instead of scared shitless. I hoped my suit and tie looked all right.
On the fifth floor, a sheriff’s deputy ushered me into a closet-size room behind a door to the right of Judge Gaughan’s towering rosewood bench. Later, he led me to the empty jury box so I could hear Dunn argue yet again with the judge about the reporter’s privilege. Gaughan never hid his contempt for Dunn or the free press. “Speak up, or you’ll say I’m having another secret hearing,” he barked.
Ushered onto the witness stand, I scanned the press in the gallery, recognizing only a few of my fellow journalists. The legal and pop music beats don’t usually overlap. I knew more of the photographers outside, since they also shot concerts. I saw Kelly at the defense table fifteen feet to my left, but I don’t recall him looking at me.
Gaughan had made a decision about my testimony that managed to displease everyone involved: I would take the stand, and become part of the record, but not in front of the jury. Dunn and the Sun-Times didn’t want me to be hauled into court because of the bad precedent it would set for other journalists. The defense wanted the jury to hear me take the Fifth, making me look guilty of something, fostering their hazy argument that I was part of a conspiracy to hurt their client. The judge pressured the prosecutors to give me immunity to say I’d handled the tape, and they saw the whole thing as a pointless waste of time. I certainly didn’t want to be there; I didn’t want to risk exposing sources I’d promised confidentiality.
By agreement with the defense, Dunn asked the first three questions after I took the oath and stated my full name for the record. “James Peter DeRogatis,” like my mom used to say when she got angry. Dunn knew how I’d answer, but he wanted the questions in the record because he intended to file an appeal after the trial to prevent the precedent Gaughan was setting for a journalist being forced to testify. (He fought it all the way to the Illinois Supreme Court, which decided not to hear the case.) Dunn asked if I’d received a video showing Kelly with an underage girl, if I’d talked to sources who’d seen that video, and if I’d assured confidentiality to sources while reporting on Kelly. I could not answer then—instead I read my index card—but I can now. Yes, hell yes, and you bet your fucking ass I did.
The defense didn’t sic one of its bellicose big dogs on me. I got Marc Martin, who started by calmly asking, “What do you do for a living?” I read my index card, respectfully declining to answer blah, blah, blah, First and Fifth Amendments. This prompted yet another argument. “Saying what he does for a living would not incriminate him,” Martin said. Dunn disagreed; it was all part of the chain. Gaughan sighed. “Mr. DeRogatis, right now I have to make a determination whether these privileges apply. You have the choice of either answering who you’re employed by, or me holding you in direct contempt. Talk to Mr. Dunn.” Damon nodded okay, so I gave my first and only full answer.
“Your Honor, I’m the pop music critic at the Chicago Sun-Times and the co-host of a show on Chicago Public Radio.” Gaughan seemed pleased. The absurdity still strikes me.
The defense asked sixteen more questions about whether I’d written articles “critical of Mr. Kelly,” received the videotape, given it to police, copied it, or made alterations to it. The index card got progressively soggier in my palm as I read it sixteen more times. I’m a lousy actor (that’s my daughter’s talent), but I did consciously perform, punching one word every time I read that card. That word was an outlet for all the frustration and disgust I’d lived with since the day I began looking into the fax. That word meant a lot to me. That word was “First.”
“Each time he gets to the final sentence, DeRogatis pauses, then half-shouts—‘the FIRST . . . and Fifth Amendments’—like a television sportscaster making sure we all notice his trademark catch phrase,” Josh Levin wrote in Slate. “The tightly wound Gaughan, shockingly, doesn’t seem to find this performative style annoying.”
As a deputy ushered me out of court, defense attorney Ed Genson hobbled over, leaned on his cane, and said, “Thanks, you did exactly what we wanted you to do.” Kelly sort-of thanked me too, in Soulacoaster. “The Chicago Sun-Times reporter, Jim DeRogatis, who broke the story and was the first to receive the supposed sex tape, took the Fifth and refused to testify.” He left out the First Amendment, but then his book omits a lot of things.
Genson’s words haunt me to this day, though Dunn assures me Judge Gaughan would not have allowed me to testify about anything I’d learned about Aaliyah, the girls who sued Kelly, or what the Sun-Times called a pattern of predatory behavior dating to 1991. The only testimony the judge would allow was about one girl on one videotape, and the jury never heard anything I said anyway.
My colleagues gave me a standing ovation when I returned to the newsroom, and Laura Emerick, who edited both me and Roger Ebert, handed me a note from the film critic, who called me “a hero.” Battling cancer and no longer able to walk, speak, or eat solid foods, Ebert continued reviewing movies for the paper until the day he died in 2013. Nothing I’d done came close to that kind of heroism, much less the heroism of the girls who’d spoken to me despite fears the Kelly camp would retaliate. I remember feeling the way you do when you narrowly avoid a car wreck. I took off my tie and threw it in the trash can beside my desk.
R. Kelly’s defense team started its case on June 5 and moved quickly. They called another three of Reshona Landfair’s relatives and asked them if they recognized the girl on the tape. “No, I don’t,” said Leroy Edwards, her uncle and the manager of the vocal group 4 the Cause. “No, she definitely wasn’t her,” said Shonna Edwards, a cousin who sang with her in the group. Another of Reshona’s aunts, Charlotte Edwards, said the girl in the video had bigger breasts than her niece. Ed Genson asked if she’d seen Reshona naked. “Yes, when I used to change her diapers.”
Bringing some additional star power to the trial, the defense called Jack Palladino, a tough-talking Hollywood attorney and private investigator to the stars. His résumé included work for John DeLorean, Michael Jackson, Courtney Love, the Menendez brothers, and Bi
ll Clinton, whose first presidential campaign tapped him to handle the infamous “bimbo eruptions.” Hired by Kelly in the early 2000s, Palladino had questioned Demetrius Smith about the tape circulating on the streets, and Smith told him he didn’t know anything about it. That did not come up in court (and Smith was never subpoenaed, either). Palladino testified that he’d interviewed Lisa Van Allen and her fiancé, Yul Brown, in early 2002 over dinner at Atlanta’s Four Seasons Hotel. At that meeting, Palladino said Brown claimed the couple had a six-figure book deal to tell Van Allen’s story.
“I didn’t believe there was a book deal. The $300,000 deal was a coded way to get money from my client,” Palladino said. On cross-examination, prosecutor Robert Heilingoetter noted that neither Brown nor Van Allen had asked Kelly for money. “I’m trying to figure out where this extortion is, except somewhere between your ears?” Palladino insisted the book deal meant the two would clam up if Kelly paid them. “There’s little doubt about what that meant,” the private detective said. Book equals blackmail? Heilingoetter was incredulous. “Nice work, detective,” he cracked.
A month after the trial ended, Judge Gaughan shined a spotlight on how concerned the Kelly camp had been about Van Allen’s testimony and the tape of her threesome with Kelly and Reshona. The judge unsealed a transcript from a closed hearing during the trial, the only one he ever made public. During that session, prosecutors said they were weighing charges against Kelly’s manager Derrel McDavid for bribery and witness-tampering, Abdon reported. Van Allen gave sworn testimony that McDavid told her he should have “murked” her, gangster lingo for “beaten” or “killed.” Instead, he paid her $100,000 over three meetings in his Oak Park office in return for her telling Kelly’s attorneys she never had sex with the singer, prosecutors said. In her sworn statement, Van Allen said she’d done as instructed and lied because she was afraid of McDavid.
The fact that Van Allen had testified despite her fears struck Abdon and me as particularly brave. Yes, she’d taken money. She’d also had her reputation dragged through the mud by the defense on cross-examination. The FBI, the United States attorney, and the state’s attorney declined to comment about McDavid. An investigator told Abdon they were looking into him, but authorities never brought any charges against him.
Wrapping up its case, the defense called its own video expert, Charles Palm, whose only hits on the Nexis news database come from the Kelly trial. Palm said the tape could have been faked. He called the spot on Kelly’s back “video noise,” not the mole seen in photos. On cross-examination, lead prosecutor Shauna Boliker got Palm to admit he couldn’t detect any fakery; he simply couldn’t rule it out. “Is it true that water or urination would be difficult to fake?” she asked, her discomfort obvious. “A lot of things would be possible to fake at this level,” Palm said, though he granted that act might be especially challenging.
“People do not want to read about urination in their morning paper,” Sun-Times Editor Michael Cooke had declared before our first story about the tape. By the end of the trial, news reports regularly mentioned the act, and Kelly’s lawyers joked about it. One day, when a TV reporter asked Sam Adam Jr. about the brand of the cologne he had worn to court, the lawyer laughed. “Urine!”
Many people had come to call the video “the pee tape,” focusing on that one act instead of the statutory rape depicted in graphic detail for almost half an hour. It wasn’t the pee tape, it was the rape tape, but urination as a sexual fetish became the focus. That was what comedian Dave Chappelle had mocked in “(I Wanna) Pee on You,” and that’s all that stuck with many people who hadn’t seen the whole horrifying video (Kelly later told GQ he had never heard of the Chappelle skit, but in 2019, the comedian and his friend and showrunner Neal Brennan told several media outlets that Kelly’s crew menaced them and wanted to fight when they visited Chicago for a show by rapper Common. “Dave’s goons intervened. [Kelly’s] goons negotiated,” and nobody got hurt, Brennan said.)
On June 10, Kelly stood before the bench and assured Judge Gaughan that he understood his rights, and after discussing the matter with his attorneys, “I decided not to testify.” With that, the defense rested. The prosecution recalled one of its video experts to refute the expert for the defense, and Atlanta prosecutor Robert Wolf flew to Chicago to testify that Yul Brown had not been offered a deal on gun and drug charges there in exchange for his fiancée Lisa Van Allen’s testimony at the Kelly trial. Two days later, on Thursday, June 12, both sides made their closing arguments.
Prosecutors once again showed the full video to the jury, the media, and the spectators who, as on opening day, filled the courtroom to capacity for the big finale. As it played, Robert Heilingoetter methodically cited each of the remaining fourteen counts from Kelly’s indictment, one per key scene on the tape. “Adjustment of the camera; more production,” and so on. At one point, Juror No. 61, the Romanian immigrant, looked away, disgusted even after so many viewings. Citing Sparkle’s testimony that her niece had once been a happy-go-lucky “jolly” girl, Heilingoetter said that on the tape, “she had become something else. Sweet, nice, lovely people are not insulated from being victims.”
“The world is watching,” Adam Jr. said as he started closing arguments for the defense, clearly relishing his plum role. He’d brought his wife to court. “We’re making a tape, but she’s legal!” he said when introducing her to reporters. To find Kelly guilty, he bellowed at jurors, “You are going to have to call Reshona, fourteen times, individually and collectively, a whore. You’re going to have to say this girl, before the world, is a whore! My momma used to tell me, if you ain’t got nothing nice to say, don’t say it at all.”
Promptly forgetting that, Adam Jr. painted Sparkle and Van Allen as thieving liars. He mocked the duffel bag—“Like some kind of porno Santa Claus, he’s running around with a bag of porno tapes wherever he goes”—and misquoted 2 Corinthians 11:14 to call Van Allen the devil. Most effectively, he questioned why prosecutors didn’t call Reshona as a witness. “Why don’t they bring her in? She’s just down the street . . . She was placed under oath at the age of fifteen or sixteen, she saw that tape, and said, ‘It’s not me!’”
Judge Gaughan instructed the jury to disregard that comment. They were not supposed to hear about or consider what Reshona had told the grand jury.
Not one to slow down for a speed bump, Adam Jr. barreled ahead. “Look in the crowd right now. Is Reshona here or not?” Fully in his thrall, half the jury scanned the gallery. Sweat dripping from his face, he went on to show the photo of the mole juxtaposed with a frame from the video. “If that mole is gone, it’s not Kelly.” He brushed off family members who identified Reshona as the girl in the tape but who didn’t take action against Kelly. “Any solid man in the family, any solid woman, would have gone over there and broken his legs! They would have beat the crap out of him!”
After quoting the Bible for the older churchgoers on the jury, Adam Jr. tossed in some pop-culture references for the younger members, name-dropping Janet Jackson, Dave Chappelle, and the tween phenom of the moment when he asked why Reshona hadn’t talked to her friends about having sex with Kelly. “She is a thirteen-year-old-girl having raunchy, dirty, nasty sex . . . with a superstar who’s won Grammy Awards and she tells no one? You couldn’t keep a thirteen-year-old girl’s mouth quiet about having Hannah Montana tickets!”
Press accounts agreed that Adam Jr. put on a hell of a show, while Boliker kept her closing rebuttal simple and direct. “You know what’s on that tape. You know it’s vile. You know it’s disgusting. And you know it’s Robert Kelly and Reshona Landfair.” As for the victim, “How dare he call her a prostitute?” she asked, her sunny singsong cracking. “This is not a who-done-it. It is a he-did-it.”
Jurors began deliberating at 2:30 p.m. on Thursday, June 12. An hour later, they requested transcripts from the entire trial, or at least the testimony of the “bombshell witness,” Lisa Van Allen. They also asked for a copy of the videotape and the equ
ipment to view it. Judge Gaughan denied their requests. They broke at 5:50 p.m., and the judge sent them to their hotel for the night. Two jurors signaled their unhappiness. One sent the judge a note complaining that his dinner arrived late, and shortly after deliberations began again at 8:30 Friday morning, another sent a letter asking, “How can I be removed and go home? I really need to.” The point became moot when, at 1:30 the afternoon of Friday the thirteenth, the jury bell rang, signaling a verdict after a total of seven and a half hours of deliberations.
Conventional wisdom held that relatively brief deliberations after more than a month of testimony spelled doom for a defendant. Courthouse veterans whispered in the marble hallways that Kelly would spend the next fifteen years in prison. As Courtroom 500 filled to hear the verdict, a downcast Adam Jr. shook Kelly’s hand and somberly told his client, “We did everything we could.” Judge Gaughan threatened to cite anyone who disrupted the reading of the verdict for contempt, immediately sending them next door to Cook County Jail. “I don’t want any outbursts.”
Shortly before 2 p.m., the foreman read the verdict for the first of fourteen counts against R. Kelly for making child pornography. “Not guilty.” Ignoring Gaughan’s warning, Adam Jr. shouted, “Yes!” His client broke down in tears. Wiping his face with a baby-blue handkerchief, Kelly whispered, “Thank you, Jesus.” He repeated those three words thirteen times when the verdict came in for each of the remaining counts. After the final “not guilty,” the singer slapped Adam Jr. on the back and hugged Ed Genson, resting his head on a grandfatherly shoulder and crying some more. Kelly’s manager Derrel McDavid cried, too. The prosecution team looked stunned.
Minutes later, Kelly walked down the handicap ramp at his special entrance a free man. The Pied Piper patted his heart, smiled, and waved at the photographers, television crews, and a hundred supporters who finally thronged on the big day. “I love you!” one fan shouted as Kelly sped away in a black SUV. It went to Douglas Park on the West Side, where Kelly’s tour bus waited with more of his entourage.
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