Police reports, internal agency emails and other documents obtained by Kansas Reflector provide a clearer picture of the raid than the early one that crystallized as a fast-moving story attracted international attention.
There was the restaurateur who wanted a liquor license. The reporter who looked up the restaurateurâs drunken driving record. The police chief who knew reporters were investigating his past misconduct. The newspaper publisher with his strident editorial voice, and the
demise of his defiant 98-year-old mother.
We now know there was also a KBI agent and his supervisor who had advance copies of the search warrants. A sheriffâs detective who wrote the search warrants. Department of Revenue staff who treated the reporterâs actions as criminal. And a fire marshalâs investigator who participated in the raid even though he seemed to realize it was unlawful.
Then there was the county attorney who claimed he didnât review the search warrant affidavits until after the raid, even though police had sent them to him for preapproval. And the magistrate judge,
with her own checkered driving record, who signed three of the search warrants but refused a fourth.
Officers from three agencies converged Aug. 11 to seize personal cellphones, computers and other items from Marion County Record publisher Eric Meyer, two of his reporters â including one who wasnât even a target in the investigation â and Councilwoman Ruth Herbel. Police also rummaged through a reporterâs desk drawer and Meyerâs paperwork to take stock of confidential sources.
There is no indication in any of the records obtained by Kansas Reflector that anybody anywhere suggested the raid would be a bad idea, despite federal protections for journalists and the
flimsy pretext of a crime.
Katherine Jacobsen, U.S. and Canada program coordinator for the
Committee to Protect Journalists, said it is incredibly concerning that so many taxpayer-funded agencies were willing to tacitly or directly sign off on a gross violation of the freedom of the press.
âI think the most charitable interpretation I can come up with is they just didnât know and were ill informed about freedom of the press and the rights that journalists have in this country,â Jacobsen said. âA more nefarious interpretation is, of course, that they just didnât care and were in fact kind of happy to see the journalists put in their place.â
Before and after
Marion County Record reporter Phyllis Zorn was exhausted Aug. 16 after staying up all night to publish the first edition of the newspaper since the raid five days earlier.
Scrutiny of the raid had intensified as
the police chief and KBI director issued statements about journalists not being above the law â a distraction from the reality that if anyone had broken the law, it was the police. The newspaperâs 200-point bold type headline that morning read: âSEIZED ⌠but not silenced.â
Cody, the police chief, had notified County Attorney Joel Ensey of his investigation in an Aug. 8 email, and sent copies of the search warrants to Ensey before taking them to a magistrate. A day after the raid, Ensey told Cody he would need to get a district court judge to sign the warrants so that the evidence seized during the raid could be reviewed by law enforcement outside of Marion.
âI also believe with the scrutiny this will receive, another judge reviewing the warrant would be a good idea, especially with some of the new information learned during the search,â Ensey said.
But as copies of the newspaper were being
delivered around town on Aug. 16, and new subscribers streamed into the newspaper office, Ensey claimed he had reviewed the search warrants in detail just two days before. He said there was insufficient evidence to support the raids and that items seized would be returned.
Zorn, wearing a Mickey Mouse T-shirt, leaned against the doorway to the sheriffâs office evidence locker, where a deputy was retrieving the electronic devices that police had collected and bagged during the raid. The reporter was listening to Sheriff Jeff Soyez assign blame to the police department.
âItâs not my search warrant,â Soyez said. âIt was PDâs search warrant.â
He leaned in to say quietly in Zornâs ear: âYou didnât see me over there.â
âNo, Iâm glad I didnât,â she told him, âbecause as relaxed as it is between you and me, I probably would have said some things.â
In fact, it was one of Soyezâ officers, Detective Aaron Christner, who had advised Cody on Aug. 8 to get a search warrant to preserve emails. Christner then drafted the search warrants and sent them to Cody to modify and sign. During the raid, Christner used software to make a digital copy of files from Zornâs computer, which
police initially didnât disclose on their evidence log.
Ensey and the sheriff werenât the only ones offering a cop-out.
Anyone can access driving records legally through the Department of Revenueâs online database â if they have a name, date of birth, and driverâs license number. Marion resident Pam Maag on Aug. 2 sent Zorn and Herbel a copy of restaurateur Kari Newellâs driving record, which showed Newell had a DUI and had been driving without a license. Zorn used KDORâs website to verify the record.
According to Marion police officer Zach Hudlinâs written summary of an Aug. 7 phone call, an unnamed employee in KDORâs IT department told him âthere was a loophole or a vulnerability in their system that would allow someone to access another personâs private data.â The IT staffer confirmed that Zorn had looked up Newellâs driving record on Aug. 4.
Emails exchanged among Chad Burr, with KDORâs Office of Special Investigations; Garrett Kaufman, technical services manager at KDOR; Craig Bowser, with the Office of Information Technology Services; Desiree Perry, a cyber intelligence specialist; and Valerie Pitts, IT manager at KDOR, show the agency treated Zornâs use of the website as a crime. Kaufman said it was good that police were working with the KBI.
KDOR didnât respond to an email asking why the agencyâs perspective changed in the days after the raid.
On Aug. 21, KDOR spokesman Zach Denney
told the Kansas City Star that âthis information is public record and available online.â He told NBC News âthe motor vehicle driverâs checker is public-facing and free-use.â
Cody emailed KBI special agent Todd Leeds on Aug. 8 and asked for assistance. Leeds forwarded the request to his supervisor, special agent in charge Bethanie Popejoy, then opened a case on âMarion Public Corruption.â
Leeds asked police for cellphone numbers, Facebook account names and email addresses for Newell, Meyer, Herbel, Zorn and Maag. The KBI agent also wanted
Newellâs witness statement and Herbelâs emails. Marion police sent Leeds âeverything we have currently for the case.â
Hudlin sent copies of search warrants to Leeds on Aug. 10.
âDid you guys execute this today?â Leeds asked.
âNo,â Hudlin replied. âMy understanding is that the county attorney wasnât in the office today.â
A day after the raid, Cody wrote to Popejoy at the KBI to notify her of the items police had gathered during the raid. He CCâd Ensey on the email.
âI cannot tell you how much I appreciate the KBIâs support,â Cody wrote. âIt has been tough being the Chief of Police today.â
Two days after the raid, KBI agent Toni Mattivi professed his
belief in free speech while defending his agencyâs involvement in the investigation and taking a jab at news media. Mattivi said his agent did not apply for the search warrants and wasnât present during the raid.
Attorney General Kris Kobach, who has oversight of the KBI,
told reporters on Aug. 16 that the KBI âwas not notified of the searches prior to their taking place.â
The s---storm
Cody told the KBI that Magistrate Judge Laura Viar âscrutinized the evidence and decided it was not enough for me to get Pam Maagâs electronic devices.â
But Viar approved search warrants for the Marion County Record newsroom, Meyerâs home and Herbelâs home. The alleged crime was identity theft.
On the morning of Aug. 11, Marion police asked Chris Mercer, an investigator with the Office of the State Fire Marshal, to help with the raid.
Mercer agreed. He was briefed and assigned to Meyerâs house, according to the report he filed. He arrived at 10:55 a.m.
There, he secured Meyerâs cellphone and laptop and made Meyer leave a stack of paperwork on a table. Mercer told Meyer and his mother, Joan, the 98-year-old co-owner of the paper, they were free to leave.
From Mercerâs notes: âEric home walking around with phone heâs upset, âwe in s---storm,â he says.â
Joan Meyer alternated between being calm and outraged, Mercer wrote. She called the judge stupid. Demanded police get out of her house. Called them Nazis.
She told Mercer she had previously suffered two strokes. If she has another, she said, thatâs âgoing to be murder.â
âJoan crying and violent verbally, sitting in living room, Nazi comments, angry kicking walker,â Mercer wrote.
At one point, Mercer heard Eric Meyer talking to someone on the landline: âCody has checkered past, and he will now have access to that information!â
The phone rang after Eric Meyer left to go to the newsroom, which was under siege. The caller was the author of this story. Joan Meyer answered, then handed the phone to a sheriffâs officer, who wasnât interested in answering questions.
âJoan appears to be getting more confused,â Mercer wrote. She was crying and mumbling about corruption.
At the newsroom, police read reporters Zorn and Deb Gruver their Miranda rights. Gruver, who wasnât named in any of the search warrant affidavits, told Cody she didnât have anything to do with Newellâs driving record. Cody ripped her personal cellphone from her hand.
Surveillance video shows Hudlin uncovered a file in in Gruverâs desk drawer and encouraged the police chief to take a look,
the Marion County Record reported.
âHmm,â Cody said. âKeeping a personal file on me. I donât care.â
The first page in the folder revealed a confidential source who had provided information about Codyâs time on the Kansas City, Missouri, police force. A half-dozen of Codyâs former coworkers had told Gruver that Cody faced demotion for sexual harassment before taking the Marion job in April.
When police arrived at Herbelâs house, she was in the bathroom. Her husband, who suffers from dementia, ran in a circle through the house trying to find her. He went to the backyard and screamed her name. She sat him down on the couch to try to calm him.
The councilwomanâs supposed crime involved forwarding Newellâs driving record to the city manager and raising concerns about whether the city council should grant Newell a liquor license. A political adversary, Mayor David Mayfield, had tried and failed to remove Herbel from office before. A felony crime would disqualify her from public service.
Police took her cellphone and computer during the raid, leaving her without a way to call for medical help if her husband needed it. She had to drive 35 miles to a town where she could buy a new phone.
Herbelâs husband ended up staying on the couch for more than three hours. Following the raid, she has taken him to the doctor several times because of his declining health.
âI will never forgive this police force or the sheriffâs office or the county attorney or anybody else for what they did to him,â Herbel said. âI mean, they can kick an old lady â and Iâd say Iâm an old lady because Iâm 80 years old. And I canât run that fast either. But they donât do that to my husband. Heâs 88, and I just felt that this shortened his lifespan tremendously when they did this, and Iâll have hard feelings against them all.â
Federal protections
By Mercerâs own account, he made sure city police went through the stack of paperwork he required Eric Meyer to leave behind.
Meanwhile, Mercer wrote, Joan Meyer was âyelling not to touch her stuff, calling us a--holes.â
She hoped officers would fall down the stairs and break their necks. She threw her walker.
âThe team left and I was the last one out of the front door, while she sat in her recliner continuing to yell at us,â Mercer wrote. âShe mentioned something about shoot if we come back, but I disregarded it as a I walked out the door.â
The article â âWhen the police knock at your door: Newsroom search warrantsâ â is about the federal Privacy Protection Act, which requires criminal investigators to get a subpoena instead of a search warrant. Congress passed the law to address concerns about police weaponizing search warrants against journalists.
Journalists âfeared that the magistrates who issued warrants for these searches, often political allies of law enforcement officials, would be biased in deciding whether there was probable cause to justify issuing a warrant,â the attorneys wrote. âIn addition, they feared that such searches would physically disrupt the newsroom and its operations.â
A spokeswoman for the Office of the State Fire Marshal didnât respond to questions for this story about why the legal memo is attached to Mercerâs report, or why he agreed to join an unlawful raid.
Max Kautsch, president of the Kansas Coalition for Open Government, said the reference to federal protections attached to Mercerâs report âgoes a long way to show that the decision-makers at the state and local levels involved with authorizing and executing the searches knew or should have known the searches were contrary to clearly established law.â
A convenient excuse
Four days after the raid, Marion Councilman Zach Collett emailed the League of Kansas Municipalities. He was âbeginning to wonder if it would be beneficial to our community to have a council member grant an interview request?â
âI would be comfortable doing this, but would most definitely want lots of coaching from someone more versed in crisis communication than myself,â Collett wrote. âI was wondering if the League offers any services like that? I am still unsure of the best route forward, but I am tired of our community being portrayed the way (it) is in a national headline currently.â
Nathan Eberline, executive director of the League of Municipalities, referred Collett to two firms that focus on crisis communications and pointed him to a YouTube webinar on the topic.
âGiven the weight of the media focus, I agree that it would be prudent to speak with an expert,â Eberline said.
Eric Meyer said nobody in Marion, including himself, wanted this kind of publicity.
âI mean, weâve become the laughingstock of the free world, really, in terms of weâve got these Keystone Cops and the judge who doesnât know anything and had drunk driving arrests, and prosecutors who canât take time to read stuff, and city council members who donât answer questions,â Meyer said.
In the weeks that followed, ethics complaints were filed against Ensey
and Viar. Gruver left the newspaper and filed a civil lawsuit against Cody in federal court. Cody resigned after KSHB reported he had instructed Newell to delete text messages between them. Hudlin is now the interim police chief. Herbel is up for re-election Tuesday.
Melissa Underwood, spokeswoman for the KBI, said the agencyâs investigation âremains ongoing.â
âWe expect to be able to update on the case soon,â Underwood said. âAt that time we should be able to answer some additional questions.â
Meyer believes the raid was orchestrated by local figures who wanted to bully him.
âAnd for what? So we got Kari Newellâs driving record,â Meyer said. âThis isnât a big drug deal. This isnât embezzlement.â
The newspaperâs website recently was subjected to a malware attack, Meyer said.
âThatâs probably a more serious crime than what we were accused of â particularly since when all this was said and done, nobody did anything about it,â Meyer said. âAnd we told them what weâd done. So what crime existed? No, they just saw this as a convenient excuse.â
Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.
