Updated January 25, 2023 - 12:39 pm
A judge has rejected a motion from the Las Vegas Review-Journal calling for sanctions on the Metropolitan Police Department over how investigators searched the cellphone of slain reporter Jeff German.
District Judge Michelle Leavitt oversaw a hearing on Wednesday regarding the motion, which is part of the Review-Journal’s legal battle to prevent officials from searching German’s personal devices, including his cellphone and computers, which could contain information about his confidential sources.
Former Clark County Public Administrator Robert Telles is accused of killing German outside the investigative reporter’s home on Sept. 2. German, 69, had worked as a reporter for nearly 40 years and recently had reported on Telles’ conduct as an elected official and allegations that he had created a toxic work environment.
Following German’s killing, police seized his cellphone from his body and personal devices from his home. The Review-Journal first filed court documents to prevent a search of the devices on Sept. 26 and has argued that the information on German’s devices is protected by Nevada’s shield law.
In the motion for sanctions, the Review-Journal argued that officials misled the paper by stating in written communication and during court hearings that German’s devices had not been searched.
The Review-Journal asked the judge to order Metro to pay the newspaper’s attorney fees, strike the department’s pleadings from the case, and disclose the details of the search of German’s phone.
“I’m inclined to deny the motion for sanctions because it would affect the criminal case adversely, and I don’t think that that would be appropriate,” Leavitt said Wednesday.
Consequences for press rights
The Supreme Court is now left to decide if and how German’s personal devices could be searched, although the high court could order the case to be returned to District Court for Leavitt to decide.
“We respect the court’s decision, but we are disappointed the judge did not enter some sanctions for Metro’s actions,” said Ben Lipman, the newspaper’s chief legal officer.
Ashley Kissinger, an attorney representing the Review-Journal, said the case still carries significant consequences for the rights of the press.
“What’s at stake is the ability of Nevadans to be able to trust the courts to protect the rights of the press, so that the people can come forward to the press and expose wrongdoing,” Kissinger said.
Leavitt indicated on Wednesday that she would be in favor of establishing a protocol for the search of German’s devices.
The Review-Journal previously has requested that a special hearing master search the devices to relay information to investigators.
Leavitt also denied a motion from the newspaper for a preliminary injunction meant to prevent officials from searching through any car owned by German that contains data related to his newsgathering.
The case is currently in front of the Nevada Supreme Court because District Judge Susan Johnson previously granted a separate preliminary injunction preventing a search of the personal devices, which Metro has appealed. The high court, however, had remanded the case back to the District Court level for Leavitt to rule on the motion regarding German’s car.
Unredacted copies of police search warrants released in November stated that police identified Telles as a person of interest “utilizing LVMPD records, video surveillance, and legally obtained data from German’s phone.”
Concern over confidential sources
Matthew Christian, an attorney representing Metro, said Wednesday that German’s phone was searched in the “immediate aftermath of finding the body.” He said the search was conducted by investigators outside the homicide section.
“I don’t know what the data is,” Christian said. “What I do know is the homicide section has not conducted their search.”
Kissinger argued that a special hearing master would be the safest way to conduct a search of the device to ensure that information about confidential sources was not leaked to Metro, the district attorney’s office or other agencies.
Christian said Metro was opposed to that protocol.
“Someone has to look at these devices. Why is any one person more inclined to reveal confidential sources than anyone else?” he said.
Metro previously had argued that the newspaper could not request sanctions because it lacked standing to interfere in the search of German’s devices.
The department has claimed its investigators want access to the devices to search for information that would be useful to both the prosecution and Telles’ defense, and that not searching the devices would violate Telles’ constitutional rights.
Kissinger said a leak of German’s confidential information could affect reporters’ abilities to gather information from future sources.
“We know that leaks happen all the time, and this is a privilege that has a really important public policy rationale behind it,” she said during the hearing.