UPDATED: Lawyer intervenes to seek return of newspaper data secretly seized
Although Marion police and the sheriff’s office were ordered Aug. 16 to return items seized during illegal raids Aug. 11 at the Marion County Record and the home of its owners, it took a threat Thursday to have Sheriff Jeff Soyez held in contempt of court to retrieve data secretly copied from Record computers.
UPDATE: As of Saturday, however, a deal between the county attorney and the newspaper’s attorney to resolve the issue still had not been signed.
Attorney Bernie Rhodes, who represents the Record, discovered that a list, provided to the Record, of items in the raid was eight items long but that a ninth item had been added to a copy of the list retained by law enforcement.
The ninth item appeared to be a USB drive that was used to copy data from a Record computer and from other computers networked to it. The copied material was not handed over Aug. 16.
“Because that drive is still in the sheriff’s office’s custody, that means the sheriff still has access to the Marion County Record’s data — data that is both constitutionally protected and protected by federal and state law,” Rhodes wrote in a letter Wednesday to county counsel Brad Jantz. “This access is illegal. It also clearly violates the district court’s Aug. 16 order.”
Rhodes pointed out that he had called Jantz’s cell phone Monday and Tuesday but couldn’t leave a message because Jantz’s voice mail was full.
He also called Jantz’s office both days and left messages with a receptionist in which he identified himself as the Record’s attorney.
“Despite the receptionist telling me she would let you know I called, you never called me back,” Rhodes wrote. “The sheriff’s failure to comply with the district court’s order is inexcusable, and I will not stand by and wait for you to choose to return my many calls.
“Unless you and I are able to come to a satisfactory agreement by the end of the day Thursday on disposition of this — and any other items not previously released and returned — I will file a motion to hold the Sheriff in contempt of court for his failure to comply with the district court’s order.”
County attorney Joel Ensey was copied on the letter.
Although Jantz still didn’t respond, Rhodes, Ensey, Undersheriff Larry Starkey, and deputy Aaron Christner met Thursday morning to discuss the matter.
The reason the sheriff’s office had not returned the data was because the USB drive that was used to copy the 17 gigabytes of data also contained data from other investigations, Rhodes said.
They agreed that a copy of the data would be given to Rhodes and that the data would be deleted from the USB drive and, presumably, multiple other locations to which it already had been copied.
The sheriff’s office wanted a court order to delete the data so as not to “destroy evidence,” Rhodes said. A request for such an order, agreed to by both sides, was being drafted Thursday.
UPDATE: That deal ran into trouble, however, with Ensey preferring to have the drive turned over to a judge instead. A new deal, including that provision, was worked out Friday, but Ensey again would not sign it until a judge agreed to accept the drive. Chief Judge Ben Sexton responded, however, that he would not agree to anything until an official motion was submitted by Ensey and Rhodes.
Rhodes also is asking authorities to release to him and then destroy from police and sheriff’s records a large number of photographs of newspaper and other documents that surveillance video indicates were made during the illegal raid on the newspaper and the home of its owners.
The original agreement reached Thursday satisfied Record publisher Eric Meyer.
“If Larry Starkey tells us no one has looked at any of the data, regardless of the number of times it has been copied to other locations, I believe him,” Meyer said. “I trust the undersheriff. He has been very cooperative and honest with us.”
Authorities’ explanations of how the copying took place led Meyer to believe that an archive of 15 years of confidential email sent to and received by the Record might have been scanned along with a similarly large archive of published news stories but not confidential statements and document from sources concerned about the hiring of Marion Police Chief Gideon Cody, who requested the search.
UPDATE: “I certainly understand Judge Sexton’s position on wanting everything to come before him as an official joint motion,” Meyer said Saturday. “It does seem, however, that this is being dragged out unnecessarily, seemingly by the county attorney.”