A Nevada judge decided Wednesday not to punish Las Vegas police for taking an initial look at a slain investigative journalist's cellphone after he was killed in September, and said it is up to the state Supreme Court to decide whether a thorough review by homicide detectives of the reporter's electronic devices would improperly expose confidential notes and sources.
"I'm inclined to deny the motion for sanctions because it would affect the criminal case adversely," Clark County District Court Judge Michelle Leavitt said.
The judge also rejected Las Vegas Review-Journal requests to name a third-party special master to review the material and order the Las Vegas Metropolitan Police Department to pay what an attorney for the newspaper argued is hundreds of thousands of dollars in attorney fees and court costs racked up while arguing the issue.
Leavitt said she believed court orders not to disclose confidential material could be sufficient to prevent public disclosure of protected material in the murder case against Robert "Rob" Telles, a former Democratic elected county official accused of stabbing Review-Journal reporter Jeff German to death outside German's home on September 2.
Telles, who had been the focus of investigative news reports by German, was removed from his position as Clark County public administrator following his arrest and remains jailed without bail. He has been indicted on a murder charge, and his jury trial is currently scheduled for April.
On Wednesday, Leavitt didn't push back the trial date, but acknowledged the police investigation of German's death was "at a screeching halt," and won't be completed until the state high court decides if names and unpublished material that might be on German's devices are protected from disclosure by the First Amendment and Nevada state law.
Telles' new attorney in the murder case, Damian Sheets, took part in the hearing but did not speak.
The judge accepted police department attorney Matthew Christian's explanation that the initial search was necessary "in the immediate aftermath of finding the body."
The judge, prosecutors and attorneys for the department, newspaper and Telles have acknowledged there is little legal precedent when it comes to how to protect promises of anonymity or confidentiality made to people who might be in a slain reporter's files.
Attorney Ashley Kissinger, representing the Review-Journal, characterized the so-called reporter's privilege to shield sources as "critical to a well-functioning democracy."
"It's a crucial aspect of what makes the press free and independent in the United States," Kissinger told the judge, "and sets us apart from the rest of the world in the area of freedom of expression."
The Review-Journal obtained a court order in October that prevents police from accessing the devices. The police department appealed that decision.
The judge said later that she believed a court order to prevent public disclosure of information gleaned from German's devices would let police and prosecutors finish their investigation without breaching promises of confidentiality made by the dead reporter and sought by the newspaper.
Leavitt said she was "inclined to" lift the preliminary injunction imposed in October and to endorse a protective order "to protect the rights of the parties."
"So, you all can file this back with the Supreme Court," she said.
Christian assured Leavitt that although investigators accessed German's cellphone shortly after he was found dead, homicide detectives have not conducted a thorough forensic search. He said the phone and five other computer devices obtained with a warrant from German's home remain in police custody.
"We're not going to proceed until we have some kind of court approval," Christian said.
German, 69, spent more than 40 years as an investigative reporter covering courts, politics, labor, government and organized crime in Las Vegas. He joined the Review-Journal in 2010 after more than two decades at the rival Las Vegas Sun.
Prosecutors say physical evidence against Telles is overwhelming, including DNA believed to be from Telles found beneath German's fingernails, video showing a man believed to be Telles walking near German's home at about the time of the slaying, and a vehicle believed to be Telles' in the area.
Grand jury transcripts say prosecutors presented photos and videos showing a man carrying a gray duffel bag walking into a side yard of German's home before German goes there, and what a police detective described as "a disturbance" in the yard.