County attorney was briefed
County Attorney Joel Ensey, who repeatedly has ducked questions about his involvement in raids on the Marion County Record, was fully aware of Police Chief Gideon Cody’s strategy for seeking search warrants three days before the raid, according to documents obtained by the news site TheMessenger.com.
Ensey eventually withdrew the warrants, which he admitted were “legally insufficient,” but did not do so until five days after the raid — after he had been contacted by Kansas Bureau of Investigation, which took over the case.
The documents given to TheMessenger.com by the City of Marion also were requested by the Record under the Kansas Open Records Act but have not yet been provided.
The Record was told by City Administrator Brogan Jones that it might be weeks before records the Record requested were released. Under Kansas law, cities generally must respond to records requests within three days.
TheMessenger.com reported Sunday that, among more than 200 emails it received was a lengthy email, portions of which it displayed in a video, that Cody had sent to Ensey three days before Cody obtained search warrants for the Record and the homes of Record co-owners Eric and Joan Meyer and Vice Mayor Ruth Herbel.
The email contains almost the entirety of the justification Cody offered for the raids in search warrant applications later signed by Magistrate Judge Laura Viar.
Five days after the warrants were executed in simultaneous raids involving essentially the entirety of law enforcement officers on duty, Ensey withdrew the applications, saying that he had not reviewed them before the raid and that he had decided, three days after the raid, that they were insufficient.
He did not explain why it had taken two additional days after he reviewed them before he decided that they should be withdrawn. Nor did he admit that he had been contacted by Cody in advance of the raids.
On the contrary, he was quoted in other publications as stating that it wasn’t his responsibility to act on search warrant applications.
Cody’s email and search warrant applications were based largely on a federal law, not applicable in cases such as this and enforceable not by local police but by federal authorities if it had been applicable.
His email and applications also falsely claimed that Herbel had sent a message indicating that she wanted the city to block a liquor license request by Kari Newell, a portion of whose driving record had been obtained by former friend Pam Maag and sent to Herbel and the Record.
Herbel asked only that the question of whether Newell was eligible for a license be investigated.
The driving record that was sent to Herbel and the Record indicated that Newell had been driving illegally for more than a decade.
Both the Record and Herbel alerted officials that they had received the record, which the state later confirmed is a readily available public document.
Before notifying authorities, the Record had confirmed that it had come — as later was re-verified — from an open source available to anyone without any of the restrictions Cody listed in his rationale.
The Record also informed authorities that it had decided not to report the information.
Cody’s rationale appears to have been based on a false assumption about which of several possible online resources had been used by the person who supplied the document to Maag.
Neither Herbel nor the Record was contacted by Cody before the raid.
The Record was told by Cody, when he was contacted regarding another matter prior to the raid, that he, Newell, and Ensey had met in Ensey’s office four days before the raid — two days before Cody’s lengthy email to Ensey.
In an interview Monday morning, Newell denied that such a meeting had taken place.
When asked at the time of the raid, Ensey declined to say whether he should have recused himself from the case because one of the restaurants that Newell operates in located in space rented from Ensey’s brother and sister-in-law, whom sources have said have a stake in the restaurant’s revenue and whose liquor license was used by the restaurant until the license expired in August.
When KBI eventually does release its report, it typically would go to the county prosecutor — in this case, Ensey.
The Record plans to ask for a special prosecutor to be appointed instead.
Newell alleged in her interview Monday that Cody told her he was afraid KBI would enter the case and “make it go away” so he had “hidden” copies of all evidence he had gathered in a variety of locations, including his home and personal email accounts.
Newell said Cody promised to share the information with her but never did. She said that in his conversations with her during the raid, he said only that he had obtained massive quantities of evidence but never specified what the evidence was.