January 17, 2023

The capital murder trial of George Wagner IV in fall 2022 drew news outlets from across the country to southern Ohio for what state officials called the biggest investigation in the state’s history.

Among the journalists, one stood out to deputies and court staff managing the proceedings. “There’s only one person you have to look out for,” a courthouse staffer said without a whiff of irony. 

George Wagner IV (Ohio Attorney General’s office via AP)

Journalist Derek Myers was removed from the courtroom at one point for violating the court’s prohibition on entering or leaving the courtroom in the middle of proceedings. The rule was one of several Judge Randall Deering imposed in the trial of George Wagner IV, the first person in his family to stand trial for a shooting spree that killed his brother’s ex-girlfriend and seven members of her family.

Myers would appear at the center of another battle over the testimony of Wagner’s mother and brother, and accused co-conspirators, Angela and Jake Wagner. Myers’ outlet, the Scioto Valley Guardian, published a surreptitious recording of Jake Wagner on the witness stand after Judge Deering denied the media’s request to record or show his testimony.

Myers was arrested during the trial and the Pike County Sheriff’s Office seized a laptop and cell phone belonging to the Guardian from the courthouse media room. The trial ended in a guilty verdict for Wagner, but Myers is still waiting to find out if a grand jury will indict him on felony wiretapping charges.

His arrest caught the attention of First Amendment watchdogs and professional organizations, including the Committee to Protect Journalists and the Society of Professional Journalists. Both groups condemned the wiretapping allegations and law enforcement’s seizure of the Guardian’s equipment. The situation also raised questions about the opt-out rule that let Jake and Angela Wagner object to being recorded and to whom it should apply.

Some journalists in the Wagner press corps found Myers’ guerilla tactics unseemly, even unethical. But Myers insists the law is on his side and his only interests are transparency and accountability.

“It’s always been the media’s job to report on the goings on of or what’s happening with their tax dollars. And our tax dollars are funding this trial,” Myers said in a November interview with Poynter. “That’s why we do what we do at the Guardian. We do it for what is right. We do it to hold the powerful accountable, and we do it to keep the powers in check. We do it for the people at home.”

• • •

Myers’ reputation for pushing boundaries preceded him in the media room, where he stood out among the legacy print and broadcast journalists as a young editor-in-chief of a community-based news site. Some journalists knew him from his stint at a Cincinnati station where he earned the ire of photographers for shooting video on his phone. Others knew him as a community blogger who went live on Facebook from crime scenes. 

Myers never withered in the face of wisecracks from fellow journalists about his unconventional methods. On any given day, while most in the media room were working to meet rolling deadlines, Myers was grousing about the court’s restrictions and plotting challenges to them. 

“Some people in the pool were OK with having these restrictions imposed on them. They were OK with not challenging them, or at least not saying enough. And if they did want to challenge them, they couldn’t do so independently. They’d have to go through their bosses and their bosses wouldn’t necessarily let them,” he said. “I, on the other hand, don’t have bosses, so my bosses are myself. So I felt like I was in a position to stand up and speak out when I saw the court doing something that wasn’t transparent.”

Jake and Angela Wagner weren’t the only witnesses who refused to be filmed or recorded under Rule 12 of Ohio’s Rules of Superintendence for the Courts. Pike County Sheriff Tracy Evans and several officers who searched the four crime scenes also opted out.

At least 11 other states have similar provisions that allow any type of witness to object to being filmed. Other states only forbid the filming of protected classes of witnesses, such as minors, sexual assault survivors, confidential informants or undercover law enforcement agents. 

Typically in Ohio, a judge will honor a witness’ request and forbid filming of them, but will allow the media to capture audio, Columbus media attorney Jack Greiner told Poynter. It’s up to the trial judge to balance a witness’ objection with the public’s right to view the proceedings — and by extension, the media’s right to record and broadcast (or livestream) them, Greiner said. 

In Wagner’s trial, Greiner said, the judge adopted the most stringent rules he’s ever seen by allowing witnesses to opt out of audio and video without cause or explanation.

Greiner represented my network, Court TV, and other media outlets in a challenge to Deering’s order specifically addressing Jake and Angela Wagner, the only people to directly implicate George Wagner in the murders. Their accounts contradicted George Wagner’s claim that he knew nothing about the plot to kill Hanna Rhoden and did not accompany George Wagner on the shooting spree that killed Rhoden, her parents, brothers and others. Jake and Angela Wagner pleaded guilty to their roles in the murder in 2021 and agreed to testify against George in exchange for prosecutors dropping the death penalty against them.

Given their significance to the case as admitted co-conspirators, the media argued that the public had a right to see and hear their testimony even if they could not be in the courtroom for it. Or, at the very least, the media asked the judge to permit audio recording of their testimony.

“While not co-defendants, Jake and Angela are co-conspirators, and their testimony is expected to be critical to the prosecution’s case,” Greiner wrote in the media’s motion. The public outside the courtroom deserves the same insight into this testimony as those in person will experience. The jury will no doubt carefully observe the demeanor of these witnesses as it makes a determination about their credibility. The public should have this same opportunity.”

The motion goes on to say, “It is difficult to imagine what higher interest is served by the blocking [of] the recording of this testimony. It is well documented that Jake and Angela Wagner have entered plea agreements to this heinous crime. As a result, there can be no legitimate concern for their privacy here. Moreover, the testimony would be livestreamed, meaning that the public would see and hear the testimony at the same time as the jury. Thus, there can be no legitimate fair trial concerns, as there is no risk that broadcasting the testimony will reveal information the jury would not otherwise see.”

After Deering denied the media’s request, Myers alone appealed the decision on behalf of the Scioto Valley Guardian, the online outlet he launched in 2019 that serves south central Ohio. To the Wagner press corps’ surprise, an appellate court sided with him. 

The news hit the courthouse media room the morning of Oct. 25, the second day of Jake Wagner’s testimony. Myers blew up the media group chat with demands to turn the pool camera on Jake Wagner. But we couldn’t. The appellate court’s order said that before letting a witness opt out, Deering must hold a hearing to determine if a “reasonable and substantial basis exists for believing that public access could harm or endanger the fairness” of the trial. So that’s what Deering did the next morning, before the start of Jake Wagner’s third day on the witness stand. 

“It was an amazing feeling. I felt like a crusader for the public, an advocate for holding the powerful accountable,” Myers said. “At that small window of time that we had that ruling that said the judge had to hold hearings, we thought for sure the judge was indeed going to allow and permit the audio.”

Edward “Jake” Wagner (Ohio Attorney General’s office via AP)

Greiner argued for the media that Rule 12 did not require the judge to grant an objecting witness’ request, but rather, to weigh it against the public’s interest in viewing the trial. Jake Wagner’s lawyers and prosecutors argued that changing the conditions of his testimony midstream could cause him to be less forthcoming. To support their argument, they called a corrections officer who said inmates who testify against family or co-conspirators can become targets of attacks from other inmates.

Deering again denied the media’s request and let Jake’s opt-out stand. A few hours later, the appellate court reversed itself and scrapped the hearing requirement for opt-out witnesses. The status quo was restored but Myers was emboldened. He called the fire marshall to report the courtroom was over capacity. His goal was to force the court to create an overflow room, he said. Instead, proceedings were halted while the fire marshal performed a headcount.

“It just came to me in that moment,” Myers said. “There were so many people in this courtroom. I said, ‘This is a safety issue.’ But also, ‘How can I be creative enough to get a transmission outside of this courtroom legally?’ And that was to create an overflow room.”

He now sees it differently since the ploy didn’t achieve the intended goal. “It’s a little embarrassing because I think it was very petty,” he said. “It made no difference in the outcome of getting the goal of an overflow room.”

• • •

Two days after the hearing, on Oct. 28, another bombshell dropped: the Scioto Valley Guardian published a portion of Jake Wagner’s testimony on its website. Where did it come from? Why did they publish it? How would the judge react? 

As for why, Myers cited Founding Father Patrick Henry: “The liberties of the people never were nor ever will be secure when the transactions of their leaders and rulers are concealed from them.”

“I feel like when it came down to Rule 12, when it came down to the Wagner trial, that when this audio recording landed in my lap, that this was something that the rulers were trying to keep concealed,” Myers said, “and this was a transaction that the taxpayers had paid for — and how dare it be concealed from them? So when the opportunity quite literally landed on my desk to reveal what was going on inside that courtroom, we researched the law to make sure that it wasn’t illegal for us to do it. And when we saw that we were in compliance with the law if we published it, we made the decision to move forward with publishing it.”

Myers was referring to Ohio’s journalism shield law, the federal Privacy Protection Act and a 2001 Supreme Court ruling. He said the recording came from a well-known source who shares Meyers’ views on transparency and open government. He insists that no one from the Scioto Valley Guardian did anything to coax or entice the source into recording the testimony or giving it to the Guardian. 

“At no time was this person ever procured or asked to do anything illegal or record this for us or anything like that. Because, again, we’re familiar with what the law is. And the law does say that we are not allowed to procure somebody,” Myers said. 

The same day, a judge signed a warrant for Myers’ arrest for the offense of interception of wire, electronic or oral communications. A complaint accused him of unlawfully using the contents of an electronic communication while knowing the contents were obtained illegally. The charge carries a penalty of up to 18 months in jail.

“The ability to record this specific witness, Edward J. Wagner (Jake), was specifically litigated pursuant to a motion filed by the media, of which Derek Myers was one of the parties represented,’ Pike County Sgt. Joshua Carver wrote in a probable cause affidavit. “The Court ruled that there was no exception that would permit the media (or anyone) to record the testimony of Edward Jacob Wagner, as he was deemed a witness with the same right to object that any other witness would have.”

The judge also signed a warrant authorizing the seizure of a Guardian laptop and cell phone from the media room. Myers said he turned himself in Nov. 1 and posted $20,000 bail in less than an hour. His equipment has yet to be returned, he said.

Myers’ civil attorney, Greg Barwell, told Poynter that the arrest and seizure reflect the insular attitudes of small-town politics. But if anyone can withstand the scrutiny, it’s Myers, he said.

The Pike County Sheriff’s Office declined to comment on Myers’ arrest. In response to a request for comment on the allegations, Pike County Prosecuting Attorney Rob Junk said in an email that “the laptop was seized pursuant to a search warrant which [was] issued after a finding of probable cause.” The case will be presented to a grand jury after it’s “finalized,” he said, but no date has been set.

Until then, Myers said it’s business as usual for the Scioto Valley Guardian. Of greater concern to him are the costs of defending himself in court and in principle, he said.

“It’s unfortunate that this has happened. I don’t want it to happen. I don’t want to go through this. But if it’s going to happen to anybody, I want it to happen to me,” he said. “Not every journalist has the ability to fight this, so if anyone’s going to be charged with it, I would want somebody charged with it who could fight it and give them hell. And I’m that person.”

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Emanuella Grinberg is an award-winning multi-platform journalist. Her work has appeared on Court TV, Canopy Atlanta, CNN, Smithsonian.com and Atlas Obscura.
Emanuella Grinberg

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