Affidavits detail Marion police chief’s allegations against raided Kansas newspaper

The police chief in Marion, Kansas, submitted affidavits for search and seizures at three locations, including a newspaper, saying he was investigating cases involving identity theft and unlawful acts concerning computers.

The raid at the Marion County Record along with two private residences took place on Friday, Aug. 11 and sparked an outpouring of condemnation.

The affidavits were not filed until Monday, attorney Bernie Rhodes said.

The court documents list items including electronic communication devices, computers and software.

During the search, officers appeared to have been looking for evidence about how the paper obtained information that a local restaurateur, who applied for a liquor license, lost her driver’s license over a DUI in 2008.

The search warrants also list any documents or records pertaining to that business owner, Kari Newell.

The police chief, Gideon Cody, wrote that he received an email from the Record’s publisher Eric Meyer on Aug. 4 saying he had received a copy of someone’s Department of Revenue records and alleged possible misconduct regarding how the documents were obtained. The records pertained to Newell, whose liquor license was being discussed at the Aug. 7 city council meeting.

Cody alleged the information had been downloaded by reporter Phyllis Zorn.

“Downloading the document involved either impersonating the victim or lying about the reasons why the record was being sought,” Cody wrote in the search warrant application.

Newell told investigators that she had not authorized anyone to download her information and that someone had stolen her identity.

She made the accusation publicly at the city council meeting.

In a Record story published after the meeting, Meyer said the information had been provided by a source to the newspaper and City Councilwoman Ruth Herbel, whose home was also a subject of a search. The warrant at her residence lists offenses including identity theft and official misconduct.

Rhodes said the affidavits show that Zorn had been given a copy of Newell’s driver’s record and verified that information on a public website. He also said state law says motor vehicle records are the subject of the open records law, except records related to someone’s physical or mental condition, expunged records and driver’s license photos.

“What Zorn did is perfectly legal under both Kansas and U.S. law,” Rhodes said.

“As I have said numerous times in the last week, it is not a crime in American to be a reporter,” he continued. “These affidavits prove that the only so-called ‘crime’ Chief Cody was investigating was being a reporter.”

Insufficient evidence

The affidavits’ release comes three days after Marion County Attorney Joel Ensey withdrew the search warrant, citing insufficient evidence linking the seized items to alleged crimes. Law enforcement then returned computers and other devices taken during the search.

Rhodes has sent the computers to forensic experts to examine whether information on the devices were accessed while they were in law enforcement custody. The Kansas Bureau of Investigation, which took the lead in the investigation on Monday, has said the inquiry will proceed “without review of examination” of items taken during the search.

In addition to the Record’s newsroom, the police also executed search warrants at Herbel’s home and Meyer’s home. Meyer’s mother and the paper’s co-owner, Joan Meyer, died the next day at age 98 after condemning the raid as “Hitler tactics.”

Her funeral was held earlier Saturday.

The release caps an extraordinary week that placed Marion at the heart of an American struggle over press freedom. The Record’s travails have garnered international attention and focused intense scrutiny on Cody, who sought the search warrant and led the raid, and on Magistrate Judge Laura Viar, who signed off on it.

The Star reported this week that Cody, who left a 24-year career with the Kansas City Police Department to become chief in Marion earlier this year, had been on track for demotion over alleged sexist and insulting comments to a female officer if he had stayed. The Wichita Eagle reported Viar has a history of DUI arrests, including a 2012 incident in which she reportedly drove off-road and crashed into a school building.

Neither Cody or Viar have commented since Ensey withdrew the search warrant on Wednesday.