How Much Do Journalist Shield Laws Matter When A Journalist Is Murdered?
Jeff German, a forty-year veteran investigative reporter residing in Las Vegas, Nevada, was murdered earlier this year, allegedly by a local government official whose actions had received recent criticism in articles bylined by German.
Robert Telles, a county official, has been arraigned in the murder of the journalist, something prosecutors claim was prompted by German's reporting.
A prosecutor told a judge last Thursday that Telles left his own cellphone at home and waited in a vehicle outside German's home until the attack. It was characterized as a planned response to articles that German wrote about turmoil and internal dissension" in the county office that handles the property of people who die without a will or family contacts.
After articles appeared in May airing claims of administrative bullying, favoritism and Telles' relationship with a subordinate staffer, Telles lost his bid for reelection in the June primary. County lawmakers also appointed a consultant to address complaints about leadership in the office.
The murder of a journalist in the United States isn't unheard of, but it's still fairly uncommon, at least when compared to the killing of journalists in other parts of the world. This relative rarity means shield laws - meant to protect journalists' sources and source materials from government snooping - have rarely been tested, at least as far as criminal investigations go.
The prosecution of Robert Telles is taking things in a dangerous direction, as Alanna Madden reports for Courthouse News Service. Although Nevada has one of the most robust journalist shield laws (one made even stronger after the state's top court extended this protection to independent journalists), the law has (fortunately) never been tested quite like this.
Police matched Telles' DNA under German's fingernails, located evidence in his home and identified his car near the crime scene, and since his arrest on Sept. 7, Telles has remained jailed without bail for murder. However, Telles has pleaded not guilty, and the defense and prosecutors are attempting to access German's seized property.
The state law definitively protects journalists who are still alive. Those who are deceased or, in this case, murdered, don't appear to be quite as covered. There may still be some coverage, but it's unclear what it covers, who can invoke it, or how it will be applied to the German's possessions and recordings, which are being targeting by both prosecutors and Telles' defense team.
What's interesting about this situation is the fact that number one, the journalist's phone was seized, in part at least, to investigate his murder," said professor of media ethics and law at the University of Minnesota Jane Kirtly. And number two, that the Nevada shield law does not explicitly seem to protect the notes and other documentary materials of people once they have died. The statute does make reference to former journalists. So, I suppose an expansive interpretation of that might include somebody who has passed away."
Since no one seems to know exactly how the judge handling the case will read the law, German's employer is doing what it can to protect information gathered by the murdered journalist. It has filed a motion indicating it retains legal possession of German's finished and unfinished work, including everything used to create that work. It then had to go back to the court to request an emergency protective order after law enforcement threatened to search German's devices by October 4 if no court order had been obtained.
The injunction was granted but the presiding judge has ordered all parties to reach some sort of agreement. The Las Vegas Review-Journal says any agreement approved by all parties would let the government do things the state's shield law says it can't. Here's George Freeman of the Media Law Center paraphrasing the current conundrum:
It would be tragic and backward if, after a journalist gets murdered by a government official who he's about to do a story on, the same government that the murderer was part of, is able to get the confidential records and information from the murdered journalist," said Freeman.
Should a shield law prevent the prosecution from gathering evidence that might secure a conviction simply because the victim was a journalist? Should someone accused of a crime involving a journalist be restricted in their defense by a law that might provide access to exculpatory evidence? Can the government be trusted to not abuse its access if it's granted? And will permission to search in this case encourage the government to ignore the shield law if it can plausibly argue a journalist is either close enough to a criminal act to justify a search or a victim of crime necessitating the search of their possessions?
All of this is up in the air at the moment. And there are no easy answers. While it may be easy to blithely state the government doesn't need this access, any denial would have to extend to the person accused of a crime, which would implicate their rights to a fair trial. But neither should this tragedy give the government (and a former government employee) a blank check to root around in a journalist's protected work material simply because he's no longer living.
Whatever the solution ends up being, it has to be better than the one proposed by the judge handling the murder trial, which would give the Metro PD full access as part of the so-called taint team." Loading a taint team up with cops doesn't do much to limit the chance of abuse. The team should be far more impartial and not composed of current members of law enforcement. The newspaper has suggested a two person taint team composed of the judge and a former district attorney - neither of whom should have any reason to root around for information they shouldn't have access to.
Above all, everyone involved needs to remember that unique tragedies tend to result in bad laws and bad rulings. First and foremost, the victim was a journalist. And that should be the watchword as the prosecution moves forward. Serving the cause of justice should be no excuse for introduction of new injustices.