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Murder of journalist tests the limits of Nevada’s shield law

What does the police handling of journalist Jeff German’s murder say about the strength of Nevada’s shield law? Who protects the sources of a deceased reporter?

(CN) — On Oct. 3, 2022, the Las Vegas Metropolitan Police Department found journalist Jeff German stabbed to death in his driveway. His murder shook the staff of the Las Vegas Review-Journal, where German earned a respected reputation for tenacious reporting and, among others, protecting his sources.

According to the Review-Journal, German once tested Nevada’s shield law by refusing to divulge his sources to a mafia attorney in court, an act that has imprisoned journalists in federal courts and states with fewer protections. However, German’s murder investigation is now challenging this law with little legal precedent that would allow Metro police to search through German’s phone, computers and external hard drive — all of which Metro seized during the investigation.

In the following weeks, the police and staff of the Review-Journal strove to find German’s murderer, both narrowing down the same suspect: Former Clark County Public Administrator Robert Telles, the subject of German’s ongoing reporting for the newspaper. Last May, German exposed a series of scandalous behaviors by Telles, costing him his reelection thereafter.

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.

George Freeman, executive director of the Media Law Resource Center, says the move is far-fetched.

“To somehow, given all the evidence against the defendants to somehow try to get his confidential phone calls and phone numbers, to try to make a case, well, someone else that might have done it, when there's all this DNA and automobile evidence that goes against them, strikes me as a total fishing expedition. I can't imagine why the prosecution is so willing to go along with that,” Freeman said.

While Review-Journal lawyers say Telles’ defense has a right to information about German’s killing, they also say the seizure is illegal.

Nevada has one of the strongest shield laws in the U.S., which protects journalists from court orders to divulge sources, especially those vulnerable for telling the truth. In Nevada, this right is absolute, but there is no legal precedent regarding the deceased.

“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.”

Usually, a reporter’s work turns over to their employer, explained Review-Journal Chief Legal Officer Benjamin Lipman and attorney Ashley Kissinger during a panel discussion hosted by Freeman on Oct. 27.

Asserting the rights to German’s devices, the Review-Journal filed a motion for a protective order on Sept. 26 to bar police from accessing the devices, claiming the seizure violated Nevada’s shield law and the federal Privacy Protection Act. The newspaper later requested an emergency order on Oct. 4 after authorities threatened to search German’s devices that day if an agreement was not reached.

Nevada District Judge Nadia Krall granted the temporary restraining order the next day, who, according to the Review-Journal, saw the urgency of the situation and the threat to German’s sources. After all, some of German’s sources are members of Metro themselves.

Days later, Judge Susan Johnson granted an injunction to bar the search until all sides could reach a neutral way to screen records, but that didn’t stop Metro from filing an appeal with the Nevada Supreme Court on Oct. 19.

“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.

Joseph Russomanno, professor of journalism and mass communications at Arizona State, suggested Metro’s actions were a move toward a police state.

“While that may sound like a bit of an overreaction, it is a move in that direction where the police or, we know in some nations the military, can seize information when they want to and it's overrunning the rule of law when these sorts of things happen,” Russomanno said. “If this can happen, what is the purpose of having these laws and having these legal standards if they can be disregarded when it's convenient and ignored, basically?”

Russomanno added that the U.S. has the freedom of the press institutionalized in the First Amendment for several reasons, one being that the press can hold government and its officials accountable.

“The police departments are government institutions that the press can and should hold accountable,” Russomanno said. “So how can that continue to happen in any sort of efficient way when that institution and the officials within it are somehow given the free rein to run roughshod over the restrictions that keep them from keeping that wall intact between press and government?”

The wall, Russomanno explained, prevents authorities from relying on journalists to do their job.

“There is an argument to that what happens in these kinds of situations, and not necessarily this particular unique situation where the reporter is deceased, but when police or law enforcement or prosecutors for that matter seek information from journalists, including the identity of their sources, some experts push back by saying, police department, you have investigative tools of your own. You need to utilize those. That's what you do,” Russomanno said.

Kirtly noted the case begs a peculiar question: Can someone assassinate a journalist to legally obtain their sources? Review-Journal Attorney David Chesnoff addressed similar concerns to AP News.

“I hope that's not really a realistic possibility, at least not on a large scale, and I'm not making light of it,” Kirtly said. “I'm just saying that, again, I want to emphasize that this is an unusual scenario that has arisen here, and I hope it won't continue to be an unusual one.”

However, Kirtly also said it’s useful to think about the investigation in terms of qualified privilege. For example, before authorities can take a journalist’s phone, they must ensure that what a journalist has is relevant to an investigation and not obtainable from any other source — which is what the Review-Journal’s proposed protocol would entail.

Instead of using Judge Johnson’s proposed “taint team”— which would include members of Metro supervised by a Reno judge — to search German’s devices, the Review-Journal proposed to have Judge Peggy Leen review devices along with former district attorney David Roger, who serves as general counsel for the Las Vegas Police Protective Association.

Whether that will happen is yet to be seen. As it stands, the trial is set for April 17, 2023.

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