Marion prosecutor, wary of liability, wrote self-serving memos after raid on Kansas newspaper

A Marion County undersheriff on Aug. 16, 2023, reaches into an evidence locker for items seized from the Marion County Record during an Aug. 11, 2023, raid by police. (Sherman Smith/Kansas Reflector)

TOPEKA — A day after police raided the Marion County Record, Sedgwick County District Attorney Marc Bennett expressed concerns about whether a crime had been committed, the evidence seized by police and that the local prosecutor could be held personally liable for a violation of constitutional rights.

Bennett texted Marion County Attorney Joel Ensey and talked to him about his concerns. Bennett agreed to review the search warrants and advised Ensey he should return everything police had taken during the raid.

Those behind-the-scenes conversations set in motion an effort by Ensey to create a narrative that he wasn’t responsible for the raid. Ensey also asked Bennett and Riley County District Attorney Barry Wilkerson to take over the case as special prosecutors.

Despite Bennett’s initial concerns about the legality of the raid, he and Wilkerson concluded in a report they released last week that police had not violated any laws when they unwittingly fabricated a criminal charge and conducted an illegal raid. Instead, Bennett and Wilkerson decided former Police Chief Gideon Cody only committed obstruction of justice after the raid when he asked a witness to delete text messages.

Bennett and Wilkerson attempted to redirect criticism from Ensey and others who were involved in the raid by placing much of the blame on Cody. But recent court filings highlight Ensey’s involvement in the investigation before the raid, his handling of the search warrants, his post-raid conversations with Bennett, and the self-serving claims he made in emails he sent to himself.

The Aug. 11, 2023, police raid targeted Councilwoman Ruth Herbel, who was a political outcast, and journalists who had investigated city corruption and complaints about Cody’s behavior in a previous job. Their supposed crime was having received a copy of a resident’s driving record, which is a public document. Reporter Phyllis Zorn independently verified the record through a state agency’s public online database.

During the raid, police seized computers and reporters’ personal cellphones, and reviewed documents that revealed confidential sources. Joan Meyer, the 98-year-old co-owner of the newspaper, died from a stress-induced heart attack a day after her profane confrontation with the police who raided her home.

Former reporter Deb Gruver, who quit three weeks after the raid, sued Cody for violating constitutional protections for free speech and against unlawful search and seizure. Last month, she added Ensey and Sheriff Jeff Soyez as defendants in her lawsuit, and settled with Cody for $235,000.

Gruver’s attorney reexamines Ensey’s actions in an amended complaint filed Thursday in federal court.

On Aug. 8, 2023, Cody sent Ensey an email titled “Crimes?” in which the police chief, according to the lawsuit, “floated all sorts of bizarre theories about laws that been violated.” A day later, Cody asked Ensey to call him and talk about the case.

Cody and Soyez also met with Kansas Bureau of Investigation agent Todd Leeds on Aug. 9 to review evidence gathered by local police, and Leeds agreed to join the investigation. After the meeting, Soyez went to Ensey.

“Here’s the deal,” Soyez told Ensey. “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.”

Ensey’s personal notes from Aug. 9 — which he emailed to himself after the raid — show that Ensey understood the KBI was interested in getting search warrants for any devices that may have been used to access the driving record at the center of the police investigation, the lawsuit says.

Cody prepared his own search warrants with the help of a sheriff’s detective, and emailed them to Ensey on Aug. 10. Ensey opened the search warrants but claimed after the raid he didn’t review them.

On the morning of the raid, Cody pressured Ensey to sign off on the search warrants.

“I don’t know why the f*** we’re in such a f****** hurry for this thing,” Ensey told his office manager, before instructing her to take the warrants to the judge. Magistrate Judge Laura Viar then authorized the raid.

In the wake of international scrutiny over the trampling of constitutional freedoms, Bennett texted Ensey and “expressed concern about the situation,” according to an addendum to the special prosecutors’ report. Ensey documented their conversation in an email to himself on Aug. 12, the day after the raid.

Ensey said he called Bennett, who pointed to a federal court case that determined prosecutors could be personally liable for reviewing and approving a search warrant that deprives someone of constitutional rights.

“We discussed what was going on and he raised some concerns about seizing the computers and what crimes were actually committed,” Ensey wrote in the memo to himself.

Ensey claims in his memo that he was “not familiar with the subject matter” of the search warrants. After reviewing them, he wrote, he called Cody and Soyez to express concerns about the property that had been seized. But the officers objected to returning the evidence, Ensey wrote, because they wanted to “discover the fruits and instrumentalities of the crime.”

Two days later, in a separate email to himself, Ensey wrote that he felt “as though the weight of the world is crashing down.” He asked Bennett to review the search warrants and verify concerns about the “items” that were seized. On Aug. 15, Bennett told Ensey the warrants “will not sustain appellate review.”

“Every effort (should) be made to return the material seized to the owners in an expedited manner,” Bennett wrote in an email to Ensey.

On Aug. 16, Ensey announced in a news release that there was probable cause to believe a newspaper reporter may have committed a crime, but that 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.”

The sheriff — who had his deputies draft the search warrants, help carry out the raid and search the computers for keywords, and who coordinated with Cody during the raid and held a celebratory pizza party after the raid — released the evidence.

“A reasonable prosecutor, once apprised of Chief Cody’s investigation and his allegations in his August 8 ‘Crimes?’ e-mail, would have known that no probable cause existed to support that any law had been violated,” Gruver asserts in her lawsuit.

Ensey reviewed the search warrants at least in part, the lawsuit says, and knew from Cody’s email that the alleged crimes “were tenuous at best” and included federal crimes for which Ensey had no jurisdiction. Ensey also knew the targets included journalists who have special protections from searches and seizures under federal and state laws.

But Ensey still printed the search warrant applications and asked his staff to deliver them  to the judge, the lawsuit adds.

“Even if County Attorney Ensey’s claim that he did not ‘fully review’ the affidavits or warrants were true,” the lawsuit says, “even a cursory reading of the papers would reveal the intended places to be searched, leading a reasonable prosecutor to conclude what County Attorney Ensey has already conceded: that there was no legally sufficient nexus between the alleged crime and the places to be searched.”