Prosecutor, sheriff added to raid suit

By PHYLLIS ZORN

Staff writer

A lawsuit against former Marion Police Chief Gideon Cody, filed in August by former Marion County Record reporter Deb Gruver, is being amended to name two more defendants: Sheriff Jeff Soyez and County Attorney Joel Ensey.

Gruver’s lawyer, Blake Shuart of Wichita, filed an amended complaint Monday, adding the two new defendants.

Ordinarily, prosecutors are protected from being sued unless it can be proved that they played an active role in a police investigation.

In his amended complaint, Gruver’s lawyer claims that Cody sent Ensey an email Aug. 8 outlining criminal statutes he believed had been violated by a different reporter at the Record.

The amended complaint challenges Ensey’s claims that his involvement in Aug. 11 raids on the Record and the homes of Eric and Joan Meyer and Ruth Herbel were overstated.

“To the contrary, his statements were part of a carefully orchestrated effort to avoid being placed in the proverbial line of fire, knowing well that the fallout from the raids would be fast and heavy,” Shuart wrote.

Shuart quotes Cody’s original answer to Gruver’s lawsuit, in which Cody claimed emails and text messages between Cody and Ensey were exchanged starting Aug. 8.

“Ensey called a meeting with … law enforcement agencies,” Shuart quoted from Cody’s answer to Gruver’s suit. “Despite participating in emails and meetings, Ensey has since advised Chief Cody that he did not actually read the documents that Cody sent to him, including the draft search warrant affidavits and search warrants which were sent to him.”

Shuart wrote that evidence supports the belief that Ensey worked “very closely in conjunction with professional colleagues to evaluate and attempt to minimize his personal liability for the raids.”

“The day after the raids, County Attorney Ensey began evaluating the scope — or lack thereof — of his potential immunity from liability,” Shuart wrote. “That morning, (he) spoke with a professional colleague about (a) case … in which a prosecutor faced liability for reviewing and approving an affidavit and warrant, this setting into motion a series of events the prosecutor knew, or reasonably should have known would cause others to deprive the person of their constitutional rights.

“On Tuesday, Aug. 15, Ensey received advice that ‘every effort should be made to return the material seized to the owners in an expedited manner’ because ‘these warrants will not sustain appellate review.’”

Ensey then arranged a middle-of-the-night meeting with Cody and Soyez. At 9:44 p.m. Aug. 15, Ensey emailed Cody and Soyez saying he wanted to meet with them at 11:30, Shuart wrote.

On Aug. 16, Ensey released a statement that while he believed the affidavits established probable cause to believe an employee of the newspaper might have committed unlawful acts concerning computers, he had “come to the conclusion that insufficient evidence exists to establish a legally sufficient nexus between this alleged crime and the places searched and the items seized.”

Shuart wrote that even if Ensey’s claims that he didn’t fully review the affidavits or warrants were true, “even a cursory reading of the papers would reveal the intended places to be searched, leading a reasonable prosecutor to conclude what … Ensey has already conceded: that there was no legally sufficient nexus between the alleged crime and the places to be searched.”