Prosecutors’ report on Marion newspaper raid leaves questions dangling

If you read special prosecutors’ report about last year’s raid on the Marion County Record newspaper, the abuse of power by law enforcement sounds like an immaculate deception.

Officials who carted off computers and cellphones from the Record on a flimsy pretext didn’t do so out of ill will, according to Marc Bennett and Barry Wilkerson. The fact that a Marion County Record reporter had investigated Police Chief Gideon Cody? The fact that 98-year-old newspaper co-owner Joan Meyer died the day after the raid? Both dismissed as immaterial. The damage done to journalism and journalists across the United States? Simply not the their problem.

With lawsuits about the raid thick on the ground, Bennett and Wilkerson aren’t commenting further. It’s a shame, given all the loose ends and unanswered questions.

The dynamic duo did two things right. First, they lay out in exhaustive detail why Record editor and publisher Eric Meyer and reporter Phyllis Zorn committed no crimes in their everyday work of pursuing a story about restaurateur Kari Newell. But we all already knew that. Reporting on the circumstances around the raid had been clear for ages.

Second, they recommend the filing of a low-level felony charge against Cody. Unfortunately, the charge had nothing to do with the raid’s conception or execution. It instead focuses on his request to Newell that she delete text messages between the two of them.

The special prosecutors note in the 124-page report that they are not reviewing whether federal laws were broken, or whether officials might be found guilty in a civil case.

“We understand that state criminal charges might not be possible against some of them,” Meyer said yesterday. “That’s why federal civil suits will continue, why there should be public outrage over some officials’ failure to perform the most fundamental responsibilities of their positions, and why state laws allowing them to escape responsibility may need to be changed.”

Freedom of the Press Foundation advocacy director Seth Stern went even further.

“Americans across the country and the political spectrum were outraged by what Record co-owner Joan Meyer called ‘Hitler tactics,’ ” Stern said.

He added: “While we welcome the news that the former police chief who orchestrated the raid, Gideon Cody, will be criminally charged, he should’ve been charged with more than after-the-fact obstruction — the raid itself was criminal. And Cody is far from the only one at fault here. We hope he and everyone else behind the raid will also be held accountable, through the criminal courts, civil courts, and courts of public opinion. They should never work in law enforcement or government again.”

Beyond these top-line findings, the report raises a number of uncomfortable questions.

All of those who might have put a stop to Cody’s quest to raid the newspaper offered explanations as to why they simply can’t be blamed. That includes Kansas Bureau of Investigation special agent in charge Bethanie Popejoy, County Attorney Joel Ensey and Magistrate Judge Laura Viar. Their reasons appear simple and logical in isolation. But when combined, you can’t help but wonder if Cody has been left out to dry by local and state officials, eager to wash their hands of an investigation that spiraled out of control.

For example, Popejoy told investigators that Cody was “a rabid squirrel in a cage and just off doing his own thing.”

Yet she sent him a text message, quoted in the report, that reads: “I know you fell like you’re out on a limb, but there are amazing minds working behind the scenes to help you and support you. We’re here with you, so hang in there with us.”

Former Marion mayor David Mayfield was interviewed for the report, and his name crops up incidentally a handful of times. But according to a lawsuit filed by the newspaper against local officials in April, Mayfield ordered the raid and called journalists “the real villains in America.” Did investigators from the Colorado Bureau of Investigation, who took on the case from the KBI, focus too closely on a small cast of characters?

Speaking of the KBI, Director Tony Mattivi has some explaining of his own to do. Two days after the raid, he said that “in order to investigate and gather facts, the KBI commonly executes search warrants on police departments, sheriff’s offices, and at city, county and state offices. We have investigated those who work at schools, churches and at all levels of public service. No one is above the law, whether a public official or a representative of the media.”

Given that his agency now disavows any knowledge of or involvement in the Marion raid, I wonder if the director wishes he had said that differently. I also wonder who advised him on the situation at the newspaper and about the wisdom of making such a statement. I asked KBI spokeswoman Melissa Underwood, who forwarded a statement that raises more questions.

It reads in part: “Even though agents did not play a role in executing the search warrants, on Sept. 19, 2023, agents attended additional training presented by the Kansas County and District Attorney Association regarding the protections and special legal considerations afforded to the press, clergy, appointed counsel, and mental health professionals.”

Good to know that while apparently no one at the KBI made any mistakes, they received additional training to ensure they continued not making any mistakes.

Kansas Bureau of Investigation director Tony Mattivi, center, said shortly after the Marion County Record raid that “no one is above the law, whether a public official or a representative of the media.” (Tim Carpenter/Kansas Reflector)

Finally, we come to the phone call. Reading the report, the special prosecutors transcribe a phone call between Officer Zach Hudlin (now the Marion police chief) and a Kansas Department of Revenue representative. Officials would use that call as justification for much that followed.

Yet media lawyer Max Kautsch told me that call shows how poorly local officials handled the case.

“The report reveals countless instances of law enforcement’s mistakes, including, crucially, Officer Hudlin ‘reach(ing) what appears to have been an honest but mistaken conclusion that journalist Phyllis Zorn had falsified her name and motives to gain access to the KDOR records,’ ” Kautsch said, quoting from the report.

“But that conclusion doesn’t hold water upon even a cursory review of the transcript of the phone call between KDOR and Hudlin, which leads to the inescapable conclusion that, at most, the KDOR was concerned about how to regulate access to its website in the future. There is literally nothing in the transcript to suggest that KDOR had told Hudlin that Zorn or anyone else had committed a crime by accessing the KDOR’s website.”

“Honest but mistaken.” That’s the key to the sleight of hand performed repeatedly by Bennett and Wilkerson. Sure, officials may have violated the U.S. Constitution and individual rights. They may have run roughshod over due process and state law. But they thought they were doing the right thing, which excuses them.

Shockingly, the special prosecutors write: “It is not a crime under Kansas law for a law enforcement officer to conduct a poor investigation and reach erroneous conclusions.”

So what is it, then?

Here are the facts. Law-enforcement officials brazenly abused their power in Marion. They did so on based on tissue-thin speculation, costing Joan Meyer’s life along the way. They sent a chilling message to journalist across the United States. Even today, the town’s journalists and residents struggle to put the pieces back together.

The special prosecutors cleared the lowest possible bar in their conclusions that no one at the Record broke the law in doing the basic work of journalism.

But they did not serve the cause of justice.

Clay Wirestone is Kansas Reflector opinion editor. Through its opinion section, Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.

Kansas Reflector is part of States Newsroom, a nonprofit news network 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 X.