Guest commentary
Evidence suggests
new charges in raid
Kansas Reflector
Criminal convictions based solely on circumstantial evidence are a regular occurrence in Kansas.
The recent report by special prosecutors about police raids in Marion last year is rife with circumstantial evidence that the police may have had the requisite criminal intent when they planned and executed the raids without probable cause.
As one observer saw it, the police acted on a “flimsy pretext“ that they were investigating a crime.
But special prosecutors concluded that “it is not a crime under Kansas law for a law enforcement officer to conduct a poor investigation and reach erroneous conclusions.”
Meanwhile, in their report, they failed to acknowledge publicly available evidence that could have helped build a criminal case against one or more people behind the raids.
Special prosecutors need to offer a better explanation for why no pre-raid charges are warranted.
The targets of the raids — including journalists at the weekly Marion County Record newspaper; its publisher, Eric Meyer; and a former member of the Marion City Council, Ruth Herbel — have filed five civil lawsuits in federal court against authorities involved in obtaining the search warrants.
The only criminal charge the special prosecutors have filed is a single felony count against former Marion police chief Gideon Cody for conduct that took place only after the raids began.
Special prosecutors insist there is not enough evidence to “establish” that Cody “knew his conclusions were inaccurate and, therefore, that he knew the sworn statements in the warrant applications were not accurate.”
Thus, as they put it, there is “insufficient evidence to establish that Chief Cody committed a violation of the criminal laws of the state of Kansas by applying for the search warrant applications.”
But they should know better than anyone that they don’t necessarily need the proverbial smoking gun to win cases.
For more than 80 years, the Kansas Supreme Court has affirmed convictions in cases where prosecutors relied only on circumstantial evidence to punish criminals committing even the “gravest offense.”
In the decades since, the court has upheld verdicts based on “entirely” circumstantial evidence, noting that the burden of proof “need not rise to that degree of certainty which will exclude any and every other reasonable conclusion.”
Moreover, in the eyes of the law, direct and circumstantial evidence carry equal weight because “there is no distinction“ between them “in terms of probative value.”
As a result, prosecutors can win convictions using only circumstantial evidence so long as “such evidence provides a basis for a reasonable inference” by the jury “regarding a fact at issue.”
Not only is achieving convictions in this fashion the norm, but circumstantial evidence has been used to prove crimes like the ones Cody may have committed.
For example, based solely on circumstantial evidence, a Wichita married couple who doctored student loan applications were convicted of making a false writing, the precursor to a crime that special prosecutors considered for Cody.
In the Wichita case, the court held that the “totality of the circumstantial evidence” of the couple’s “knowledge of the falsity of the representations” in the loan applications was enough to affirm multiple convictions on appeal.
In the Marion case, Cody could be charged with the same sort of offense if he “falsely state(ed) or represent(ed) some material matter” about the Marion investigation “with intent to … induce” the judge to sign the search warrants that precipitated the raid.
The Wichita couple faced the music based on circumstantial evidence. Why not Cody?
The convictions in the Wichita case, along with the literally dozens, if not hundreds, of others over the years that rested solely on circumstantial evidence make clear prosecutors need not meet the highest evidentiary standards to enforce the law.
Hurdles such as the state’s mistake-in-fact defense didn’t prevent convictions in those cases.
Special prosecutors declined to move forward at least in part because they claimed to fear what they called the “specter” of that very defense, which they correctly state can “negate the existence of the culpable mental state” required to prove intent.
But they failed to mention that “the mistake-of-fact doctrine merely reflects the state’s burden to prove every element of the offense.”
It goes without saying that the elements of a crime need to be proven, regardless of whether a case rests on circumstantial or direct evidence.
The long history of successful prosecutions based solely on such evidence indicates that such convictions are routinely within reach, “mistake defense” or not.
Meanwhile, special prosecutors cited nothing in their report to show that defendants facing charges based on circumstantial evidence tend to avoid conviction because of the mistake-in-fact doctrine.
Why, then, did they feel the need to raise the “specter” of the defense at all?
Having claimed to consider “all available evidence” regarding the raids in Marion, the special prosecutors owe the public a detailed explanation of why they think none of that evidence could support a reasonable inference that police knowingly acted contrary to law.
For example, special prosecutors acknowledge that before the raids, Cody removed Record staff from a public meet-and-greet with U.S. Rep. Jake LaTurner at a restaurant. But they don’t make clear that the journalists were ejected even though they had done nothing wrong.
Their report also fails to address how expulsion at the hands of a government official interfered with staff members’ First Amendment right to receive information about a matter of public interest.
Without that kind of analysis — involving political speech undeniably protected by the U.S. Constitution — the public is ill-equipped to evaluate whether a jury could reasonably infer that Cody intended to continue his pattern of violating the Record’s constitutional rights by executing search warrants he knew, or should have known, to be baseless.
The report also fails to acknowledge, or investigators failed to gather, readily available evidence that could lead to additional inferences of intentional or knowing violations of law.
Lawsuits by the Record and Herbel include assertions that draw into serious question the mindset of Marion city officials with authority over Cody.
The Record’s lawsuit, on file months before the release of the special prosecutors’ report, reveals that former Marion Mayor David Mayfield, just 17 days before the raids, wrote that journalists are the “real villains of America” on his personal Facebook page. He played an important role in getting Cody hired a few months earlier.
Meanwhile, Herbel’s lawsuit, filed at the end of May, documents Mayfield’s longstanding feud with her.
However, such publicly available information is nowhere to be found in the special prosecutors’ report. Thus, the public is left to wonder why it didn’t appear there and whether it could support a reasonable inference that city officials’ adversarial stance toward journalists and Herbel influenced Cody.
Apart from omissions of publicly available information from the special prosecutors’ report, the facts it contains are too remarkable to add up to simple ignorance or mistake by police.
The report acknowledges that somehow the only substantive investigation that Cody and his subordinates conducted before raiding three separate locations consisted of a single phone call from Cody’s second-in-command, officer Zach Hudlin (now Marion’s interim police chief), to the Kansas Department of Revenue.
On that call, in response to asking whether a Record journalist’s visit to a KDOR website to check a driving record was legal, Hudlin was told “honestly, if anybody has your address as it appears on your driver’s license, they can access all of your documents in your file.”
The KDOR representative did go on to mention that the website could be subject to review soon to make it a “little more secure.” But as for when and how the Record accessed the website, such access would have been granted to “anybody.”
Remarkably, Hudlin told the KDOR staffer that the call had given him “lots to go on.”
Evidently puzzled, the representative responded by saying “sorry” there was no “good answer” to assist the investigation, and the call ended shortly thereafter.
But the die had been cast. Even though Cody, Hudlin, and the rest had every reason to know that the Record journalist had done nothing wrong, they eschewed further investigation and proceeded with the search warrants.
The special prosecutors’ report should have explained fully why evidence such as the KDOR rep’s comments to Hudlin would not be sufficient for a jury reasonably to infer that the police intentionally or knowingly acted contrary to law when they went ahead with their raids.
Setting aside the inherent inadequacy of an investigation based on a single phone call, it would be reasonable to expect that special prosecutors would closely scrutinize an event that amounted to the entirety of the investigation that underpinned the search warrants.
Instead, they dismiss the fateful “erroneous conclusion” Marion law enforcement drew that the journalist had “falsified her identity and motives in order to access (the) driving record.”
As the report states: “It is difficult to ascertain whether Officer Hudlin’s conclusions were the product of confirmation bias, a hurried investigation or simply a misunderstanding of what the KDOR representative was trying to explain. What is clear is that Officer Hudlin reacted to this conversation as though the KDOR representative had provided the investigation with dispositive factual confirmation that (the Record reporter) had committed a crime.”
Hudlin is a certified police officer, and Cody had more than two decades of law enforcement experience.
Special prosecutors are unable to credibly explain how Cody, Hudlin, and the rest could reasonably have believed search warrants were justified based on the call to KDOR.
Kansas law is clear that absent extraordinary circumstances, prosecutors’ discretion includes the “power to investigate and to determine who shall be prosecuted and what crimes shall be charged.”
For now, only one Marion-related criminal case has been filed, and it concerns only Cody’s post-raid conduct.
But considering the substantial circumstantial evidence that could support an inference of criminality by police, and the relevant, publicly available evidence that could further bolster criminal charges, the public deserves a better explanation for why prosecutorial discretion was not exercised in favor of better protecting the public.
Lawrence attorney Max Kautsch focuses his legal practice on First Amendment rights and open government law.