A new warrant unsealed on Tuesday shows that a second San Francisco judge had information that the subject of a police raid was a newsman after a police sergeant wrote to the court that he “makes a career out of producing/selling hot news stories."
The warrant’s affidavit, made public by the First Amendment Coalition, revealed that San Francisco Superior Court Judge Gail Dekreon allowed police, armed with sledgehammers, to search Bryan Carmody’s home on May 10, even though California’s shield law protects journalists from being forced to reveal sources.
“I also believe that Mr. Carmody kept the original copy of the report as part of his portfolio/records of news stories that he has participated in to keep track of his achievements,” Sgt. Joseph Obidi wrote in the affidavit to Dekreon. “I believe it is reasonable that someone who makes a career out of producing/selling hot news stories would keep a copy of that as part of his resume.”
Last week, court records show that San Francisco Superior Court Judge Victor Hwang was also told of Carmody's job. Police described him as a "stringer," which is a freelance videographer, who profits from selling "hot news stories." Despite that, Hwang cleared the path for police to search Carmody's property.
The state’s shield law applies to freelancers like Carmody and does not require journalists to have police-issued press passes, even though Carmody was issued one.
"The judges should have known," said First Amendment Coalition litigation director Glen Smith. "It's disappointing that they didn't really own up to that.
To date, four judges -- Dekreon, Hwang and San Francisco Superior Court judges Rochelle East and Christopher Hite -- have all quashed motions to unseal search warrants of Carmody's phone and property. (In the warrants submitted to East and Hite, police wrote that Carmody was a "videographer/communications manager/USO Bay Area, but the information about him selling "hot news stories" was not provided.)
One case is still pending and that is being reviewed by Judge Joseph Quinn. That hearing is set for Friday.
The series of Carmody court cases stem from Public Defender Jeff Adachi's Feb. 22 death. That's when Carmody obtained a confidential preliminary death report from a source that he refuses to identify, and sold that report to three TV stations, including KTVU. Carmody regularly sells video to news stations and is a regular stringer for KTVU.
It is not illegal to obtain leaked material from a source. And reporters have the legal right to keep their sources confidential.
Shortly after the leak, the Board of Supervisors demanded an investigation into who the police source is. The report painted Adachi's death circumstances in an unflattering light, highlighting the fact that he was with a woman other than his wife and showing pictures of empty alcohol bottles and an unmade bed. The coroner ruled that Adachi, a frequent critic of police, died of heart failure and that he had trace amounts of cocaine and alcohol in his system.
The raid sparked national outrage among journalist and First Amendment advocates.
There have been no known disciplinary measures for any of the police officers or judges who allowed the searches to occur.
The Department of Police Accountability is looking into the matter, Smith said. "They're supposedly reviewing how these warrants were obtained," Smith said, "and so there could be some repercussions there. We'll just have to wait and see how that turns out."
As for the four judges, it's only the latter two who had more information about Carmody's occupation since the May search warrants were more detailed, Smith said.
If he wanted to, Carmody does have potential recourse against the judges although suing a judge would be rare, Smith said.
And Carmody, or anyone else, could file a complaint with the Commission on Judicial Performance, although Smith conceded "that's a big step."