Newly unsealed records confirmed Tuesday that police stopped short of telling a judge that the subject of an investigation into a leaked incident report on the death of Public Defender Jeff Adachi was a journalist.
In an application to review the phone records of freelance journalist Bryan Carmody, a police sergeant did not disclose to San Francisco Superior Court Judge Rochelle East that Carmody had a police-issued press credential.
Sgt. Joseph Obidi only provided East with a brief job description lifted from Carmody’s LinkedIn page that did not explicitly refer to him as a journalist. Obidi then wrote that Carmody was not employed by “any of the news organizations that obtained the death investigation report.”
East, who signed the warrant in March, quashed the warrant last Thursday and ordered the unsealing of the application. The judge found that the warrant violated the California Shield Law, which protects journalists who refuse to identify a confidential source from having search warrants issued against them.
The warrant was the first of five that police executed against Carmody, who obtained the Adachi report and sold it to news outlets. In May, the SFPD raided his home and office while seeking to identify the source of the leaked report, raising press freedom concerns nationwide.
Thomas Burke, an attorney for Carmody, said he does not blame the judge for issuing the warrant. Burke blames the San Francisco Police Department for not telling East that Carmody was a journalist.
“She did not understand that he was a journalist,” said Burke, who asked East to invalidate the search warrant. “I don’t think you can fault a judge for knowing one thing or another if they are not told that by law enforcement.”
At the hearing last week, East said there was no dispute that Carmody was a journalist.
“While under other circumstances in other cases there may be some question as to what a journalist is, in this case I think there is none,” East said, according to court transcripts. “The fact that he has a press pass from the San Francisco Police Department indicates to this Court that he is a journalist.”
David Snyder, director of the First Amendment Coalition, which sought to unseal the warrant, said the language Obidi used in the application could be read as police trying to explain Carmody is not a journalist.
“One possibility is that they really hadn’t thought about the Shield Law and that just wasn’t an issue,” Snyder said. “Another possibility is that they knew really well about the Shield Law and that he was a journalist and they did their best to parse it in a way that really avoided both of those facts.”
Police Chief Bill Scott initially defended the search warrants before apologizing over the handling of the investigation in late May amid intense public scrutiny.
In a statement Tuesday, police spokesperson David Stevenson re-iterated that the department was “concerned about a lack of due diligence in the seeking of search warrants and the appropriate addressing of Mr. Carmody’s status as a member of the news media.”
Stevenson said the Department of Police Accountability, San Francisco’s police watchdog agency, is investigating the leak as well as the execution of the warrants. The SFPD has also asked an outside agency to take over the criminal investigation.
In addition to confirming what police told the judge, the application released Tuesday also revealed new information about the criminal investigation police conducted into Carmody as a conspirator in the alleged theft of the report.
The application outlines an investigation that may have begun when a police lieutenant saw an ABC7 News story on the leaked report. The report had a red “copy” stamp that made investigators believe the report was leaked from a police station.
Investigators then watched a Feb. 24 KTVU story on the Adachi leak that included a grainy video of a person’s hands flipping through the pages of the police report. The person had a “two tone gold watch” on his left wrist, Obidi wrote.
“Further internet search showed Bryan Carmody wearing a watch that is very similar to the one shown on the KTVU2 video clip,” Obidi later wrote.
Snyder said the documents showed the investigation “started and ended with journalists.”
“They were shaking down the fourth estate to get the information they thought they needed,” Snyder said.
Not included in the application was a paragraph that East allowed police to redact to protect the identity of a confidential informant. Snyder said that informant could be a police source who led the department to Carmody.
Overall, Snyder said the documents throw into sharp relief the “extreme and overbearing” response to the alleged theft of a police report.
“There really isn’t a crime here,” Snyder said. “What they’re really talking about is a violation of department policy.”
Four more judges are expected to decide whether to quash and unseal the remaining search warrants against Carmody.
The next hearing is scheduled for Friday.
This story has been updated with additional information and comments.