Paper cleared; ex-chief faces felony charge
Staff writer
Six days short of the first anniversary of now-disavowed raids on the Record newsroom and two homes, special prosecutors Monday cleared the newspaper and its staff of any wrongdoing.
They also announced that Gideon Cody, who led the raids as Marion’s police chief, would be charged with felony interference in the judicial process.
If convicted, Cody could face 7 to 23 months in prison but under sentencing guidelines more likely would face 12 months’ probation — provided officials approve his extradition from his native Hawaii, where he is thought to have moved.
Monday’s long-awaited report from Sedgwick County District Attorney Marc Bennett and Riley County Attorney Barry Wilkerson goes out of its way to say additional actions against Cody and others involved in the raids might be possible.
The prosecutors note that they did not address civil issues or possible violations of federal criminal law or standards of local and state police agencies and groups that license and discipline law enforcement officers, judges, and attorneys.
Potential political motivations also were deemed beyond the scope of their criminal investigation even though investigators did interview former mayor David Mayfield and council member Zach Collett.
Their roles in encouraging Cody to conduct the raids remain under investigation in three federal civil rights suits brought by the newspaper and members of its staff.
The newspaper also has filed a state lawsuit seeking to obtain under the Kansas Open Records Act texts exchanged in advance of the raid among those and other elected and appointed officials.
In Monday’s report, prosecutors highlight a section of state statutes indicating that charges against Cody might be related to statements made by former Marion restaurant owner Kari Newell that Cody urged her to destroy evidence of text messages the two had exchanged.
The prosecutors did not comment on that allegation, stating that their findings “will be incorporated into charges which will be brought” in Marion County District Court.
The report states that Cody’s decision to raid the Record office and the homes of co-owners Joan and Eric Meyer and of city council member Ruth Herbel was based solely on a phone call Officer Zach Hudlin had with a Kansas Department of Revenue employee whose name and title he neglected to get.
Hudlin explained to investigators that Cody “didn’t a hundred percent know Kansas law, so he was relying on me to figure out” what crimes potentially were involved.
A complete transcript of Hudlin’s conversation is included in the report. In it, the KDOR employee repeatedly states that anyone could access driver’s information.
However, Hudlin apparently assumed a crime had been committed by doing so even though he later admitted to investigators that he had misunderstood what the KDOR employee had said.
He also supplied Cody a screenshot of requirements for obtaining the information but copied them not from the form used but from a different form with restricted access.
“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,” the prosecutors say.
Regardless, Hudlin’s “mistaken conclusion” from his brief conversation with a KDOR employee “seems to have been the driving factor in the decision by Chief Cody to pursue a search warrant,” the prosecutors say.
“Other than this single phone call, no additional investigation was done,” their report says.
After Cody’s departure from the police department, Hudlin was appointed interim police chief.
It specifically notes that none of the parties, including Record editor Eric Meyer, who had volunteered to answer any questions officials might have, was ever contacted.
In fact, the report notes, more time was spent by police and deputies preparing search warrant applications than was spent investigating the basis for the warrants.
A KBI agent brought into the investigation repeatedly suggested that KBI take over the case and wait until after KBI computer experts had weighed in.
However, Deputy Aaron Christner rejected the KBI agent’s assertion that evidence could wait.
Sheriff Jeff Soyez also warned that if officers did not act promptly, Newell might sue.
The report notes that a search warrant for the residence shared by Eric and Joan Meyer was the last one prepared and was added for what the prosecutors said was an invalid reason — a rumor that Eric was known to work from home.
It does not state, as other documents have shown, that this rumor came from Soyez, who specifically suggested adding the Meyer residence to the raid.
Despite such involvement and his throwing a pizza party for the raiders after, Soyez is quoted as telling County Attorney Joel Ensey two days before the raid: “Here’s the deal. You’re getting ready to get a big, old, nasty, hairy case dropped in your lap. I would suggest you hire a special prosecutor and just stay away from this entire case.”
In fact, Ensey told investigators, he never read search warrant applications sent to him a day before the raid and complained in a profanity-laced comment about how rushed the process had been.
He had a staff member send them to a judge without his reviewing them. Three days after the raid, he decided — after consulting with other prosecutors — that they were insufficient.
The report notes that the Record had notified Soyez and Cody that it had received tips that law enforcement officers had for years ignored Newell’s illegal driving.
But the report says that Soyez told investigators such information “did not concern him.”
An officer who anonymously has admitted checking Newell’s license status but doing nothing about it was not among those interviewed for the report.
Also not addressed in the report is how council member Collett knew even before Cody had contacted her to warn Newell that the newspaper as well as Herbel had determined that Newell had been driving illegally for years.
The report also quotes an after-action report by Chris Mercer, a state fire investigator who works part-time for the Marion and Hillsboro police department.
In his report, Mercer offers a direct quote — in stilted language — which he contends was a confession by Eric Meyer to violating two specific state statues.
Investigators reviewed all available body camera recordings from Mercer and other officers involved in the raid and found no evidence whatsoever of any such statements ever being made.
A further assertion in Mercer’s after-action report was that Joan Meyer was senile and unaware of what was happening. This assertion, which appears to fly in the face of video showing her reactions during the raid, was not cited in the report.
A key question in the prosecutors’ evaluation of whether other crimes may have been committed by raiders was the raiders’ attitudes toward those being raided.
Although recounting negative comments Cody had made about the Record, the prosecutors state that he deftly did not reveal bias in his comments and “convincingly feigned disinterest” in Hudlin’s discovery of notes Record reporter Deb Gruver had obtained in April questioning Cody’s fitness to be appointed chief.
The report is full of references to what it termed officers’ ignorance of laws and investigative procedures.
However, unlike the adage “ignorance of the law is no excuse,” the report seems to indicate that ignorance as well as incompetence does limit the culpability of law enforcement officers for their actions.
“It is not a crime under Kansas law for a law enforcement officer to conduct a poor investigation and reach erroneous conclusions,” the prosecutors say.
The prosecutors found no evidence of criminal liability for the death, attributed to stress from the raid, of Joan Meyer.
Although recordings reveal that she repeatedly warned officers she might have a heart attack or stroke, the prosecutors state: “There is no evidence the officers believed they were posing a risk to Mrs. Meyer’s life.”
Admitting that the raiders’ search warrant would not have withstood legal review, the prosecutors state that the way the search was conducted “did not constitute a gross deviation from the normal manner in which searches are executed.”
As many as seven officers entered the home of the 98-year-old newspaper matriarch who used a walker and forced her to endure nearly 2½ hours of police observation.
Weeks earlier, only two officers had been sent to search the home of a suspected rapist known to have firearms in his house.
The report notes that Marion County District Judge Susan Robson declined to sign warrants for the search, citing an unspecified “conflict.”
Robson served as Marion city attorney and Marion County attorney before becoming a judge. Whether that would disqualify her from hearing any case brought by either the city or the county is unclear.
She instead referred Cody to Morris County Magistrate Laura Viar, who quickly signed his warrant application and then had Cody return nearly an hour later so she could notarize his signature, according to the prosecutors’ report.
The report rejects potential charges of battery against Cody for ripping Gruver’s personal cell phone from her hand outside the Record office.
Colorado Bureau of Investigation agents brought in to perform an independent investigation noted that Gruver was outside the Record office and therefore outside the scope of the seizure warrant.
However, prosecutors rejected that conclusion and stated that, even though the warrant would not survive review, it did allow “all necessary and reasonable force” to be used.
Not in the report was Cody’s later comment, captured on body cam, that seizing Gruver’s phone had “made my day.”
In the only portion of a federal court case resolved to date, Gruver has won a $235,000 settlement against Cody for that and other actions he took against her during the raid.