The San Francisco Police Department is criminally investigating freelance journalist Bryan Carmody as an alleged co-conspirator in the leaking of a police report documenting the late public defender Jeff Adachi’s sudden February death.
As such, the May 10 raid of Carmody’s home was not so much to ferret out his internal source but, rather, to further establish the SFPD’s allegation that he was an “active participant” in a crime and a purported “co-conspirator.”
Police Chief William Scott announced this at a hastily arranged press conference Tuesday afternoon at SFPD Headquarters. “Our actions reflect that we believe Mr. Carmody was a suspect in a criminal conspiracy to steal this confidential report,” Scott said, reading from a prepared statement.
Though Scott spoke generally of respecting journalists’ rights to receive illicitly leaked reports, he said Carmody’s alleged actions and those of the police officers he allegedly worked with, “crossed the line.”
“Crossing the line is when we believe that he was a part of that effort to illegally obtain this report,” Scott said. The chief said that Carmody would have had two motives to do this: financial gain and the opportunity to smear Adachi. While Carmody has told media he had “no beef” against the deceased public defender, who frequently clashed with the SFPD, Scott claims that, during a consensual interview with officers, Carmody expressed animus against Adachi.
“We believe for this to be successfully pulled off there needed to be contact between an SFPD employee and Mr. Carmody,” Scott said. “We believe that activity … went past doing [his] job as a journalist.”
Carmody, who earlier told reporters that he obtained the report as a standard leak, opted not to comment today. “I can’t talk about anything until I talk to a criminal lawyer,” he said. “I just can’t talk about this.” Carmody said that journalist James Risen, the director of the Freedom of the Press Defense Fund, had earlier offered to help procure a criminal defense attorney for him if it came to this, and Carmody said he would now take up that offer.
Scott said he has not yet identified the SFPD employee or employees who allegedly leaked the report.
The chief sidestepped questions about whether the department had sufficient evidence to obtain a search warrant of Carmody’s home. California’s Shield Law broadly restricts the issuance of warrants for search and seizure of a journalist’s materials.
“We had some evidence,” Scott told reporters. “And the purpose of a search warrant is to have enough probable cause to further the investigation.”
This statement, however, confused legal experts. “In fact, the standard to get a warrant is probable cause,” said Geoffrey King, an attorney and UC Berkeley lecturer.
The state’s shield law and related Section 1524(g) of the penal code, King continued, “are absolute in their terms. The burden is on the state to show there’s an exception when you have such an incredibly clear statute.”
Scott, throughout today’s 20-minute press conference, spoke of how lessons could be learned and, perhaps, things could have been done differently. But, ultimately King says, “Scott is trying to defend the indefensible. And that’s hard.”
Earlier this morning, a San Francisco Superior Court Judge heard preliminary arguments over whether the court should unseal the SFPD’s application for the warrant to search Carmody’s home. David Snyder of First Amendment Coalition, which filed the motion to unseal the application, said that this document would reveal what the SFPD told the judges who ultimately signed off on the warrant about Carmody’s status as a journalist.
“That will help figure out where the process went off the rails,” he said.
In this vein, Scott during his later press conference spoke of Carmody’s credentials. He stated that Carmody’s Linkedin profile shows … “he was not employed by any of the news organizations who received the stolen report.”
But this, too, was a confusing statement. The state’s shield law clearly protects freelance journalists, so who Carmody was employed by is irrelevant.
The chief further noted that “there were communications with the District Attorney throughout the investigation,” but no consultation regarding the warrant or subsequent raid. Responding to questions about its involvement in the investigation, a spokesperson for the DA’s office referred to District Attorney George Gascon’s Monday tweet.
“My office has not seen the warrant or the facts upon which it was based,” Gascon wrote, “but absent a showing that a journalist broke the law to obtain the information that police are looking for, I can’t imagine a situation in which a search warrant would be appropriate.”
Thomas Burke, a First Amendment attorney who has been representing Carmody since the raid, told Mission Local over the phone: “I have heard about the press conference and I’m not making any comments at this point.”