Ohio editor charged with wiretapping after publishing obtained court recording

Scioto Valley Guardian Editor-in-Chief Derek Myers was charged with felony wiretapping on Oct. 31, 2022, after publishing a recording of witness testimony from an ongoing trial in Waverly, Ohio.

Myers told the U.S. Press Freedom Tracker he has been covering the murder trial of George Wagner IV, which began in September. As part of that coverage, the newspaper was using a laptop to livestream witness testimony and exhibits. Judge Randy Deering issued an order before the trial began allowing anyone testifying in the case to “opt out” of being filmed by the media. The Fourth District Court of Appeals issued an emergency order overruling him partway through the testimony of Wagner’s brother, Jake, who was indicted alongside Wagner and their parents for the 2016 killings of eight members of the Rhoden family.

The court ordered that media be allowed to film unless Deering was able to show cause that it could jeopardize the fairness of the trial. Deering ruled that if Jake were to appear on camera he might be “nervous” and untruthful, again barring media from recording video or audio of him.

Myers told the Tracker that he was out of the country when Jake took the stand, but that someone in the courtroom surreptitiously recorded his testimony and provided it to the Guardian. After deliberation, Myers published a condensed version of the audio on Oct. 28.

According to files reviewed by the Tracker, Judge Anthony Moraleja approved a search warrant that day for a Guardian laptop being used to livestream the trial. The Tracker documented the laptop seizure and the illegal seizure of Myers’ cellphone here.

The Pike County Sheriff’s Office subsequently charged Myers with interception of wire, electronic or oral communications, a fourth degree felony. According to court records, he was charged under Ohio Revised Code Section 2933.52 (A)(3), which forbids the use of a recording that one knows or has reason to believe was illegally obtained.

Myers turned himself into custody on Nov. 1 and was released after paying a $20,000 bond. He told the Tracker that he pleaded not guilty at a hearing the following day. He also waived his right to a preliminary hearing, where evidence is presented before a judge who decides whether the case should advance to trial. Instead, his case will be heard by a grand jury, which will determine whether to indict him on the charges.

When reached for comment, the Pike County Prosecutor’s Office told the Tracker that the next grand jury session is scheduled to begin in February 2023, when the new prosecutor takes office.

One of Myers’ attorneys, John Greiner, highlighted the Supreme Court ruling in Bartnicki v. Vopper, which ruled that the media cannot be held liable for publishing information that was obtained illegally by a source.

The Committee to Protect Journalists, a founding partner of the Tracker, condemned the equipment seizure and the charges against Myers in a statement.

“The incompetency of local law enforcement to abide by basic legal proceedings would be comical if it were not so concerning,” said CPJ U.S. and Canada Program Coordinator Katherine Jacobsen. “Not only have Pike County authorities confiscated journalist Derek Myers’ cellphone and the Scioto Valley Guardian’s laptop without presenting a valid warrant, but they have also lobbed wiretapping charges against Myers for keeping the community informed about an ongoing murder trial. Retaliating against a news outlet, especially a small local publication, for doing their jobs in matters of public interest is completely unacceptable.”

Myers told the Tracker he hasn’t been able to cover the trial since his arrest.

“I tasked myself with covering this eight-week trial and I should be there covering it, but I can’t because I don’t have the equipment,” Myers said. “And, frankly, I don’t feel safe in that courthouse. If I take another cellphone down there they’ll probably seize that too.”