First Amendment lawyer Max Kautsch speaks about legal issues surrounding the raid on the Marion County Record newspaper on Aug. 11, 2024, at the Marion Senior Center. (Jessica Tufts for Kansas Reflector)
The special prosecutors tasked with bringing charges based on the three dangerous and unconstitutional search warrants executed in Marion last year — Marc Bennett and Barry Wilkerson — need to explain how they have been able to serve in those roles despite advising an implicated official after the raids.
Until this conflict of interest is resolved by disqualifying them or otherwise, the public has no choice but to wonder whether their decision to file only one charge against former Marion police chief Gideon Cody, for conduct taking place well after the warrants were conceived, falls short of protecting us from unconstitutional searches.
Admitted conflict
On the last page of their report , the special prosecutors themselves disclosed circumstances that created the conflict of interest.
Bennett reached out to Marion County Attorney Joel Ensey on Saturday, Aug. 12, 2023, the day after the raids. Bennett “expressed concern about the situation in Marion and drew Mr. Ensey’s attention to relevant case law.”
At a meeting two days later, on Aug. 14, Ensey asked Bennett to “review the three search warrants” officers had executed with “the assistance” of “Mr. Wilkerson,” among “other Kansas prosecutors.” Those attorneys “read the warrants and offered their collective opinion” about the “viability and sufficiency” of the warrants, which Ensey knew about before the raids ensued. Ensey was apparently reassured that his instinct to question the validity of the warrants was correct.
Ensey had no previous relationship with Bennett or Wilkerson, and the Aug. 14 meeting was the last time Bennett and Wilkerson spoke to Ensey about the warrants.
Then, on Aug.16, Ensey issued a press release saying he had concluded that the warrant applications contained “ insufficient evidence ” to underpin the searches. He facilitated law enforcement’s return of all items seized in the raids.
Ensey’s decision, made only after meeting with Bennett and Wilkerson, undercuts Wilkerson’s recent claim to Kansas Reflector that his and Bennett’s relationship with Ensey was “ so minimal .” Bennett has declined Kansas Reflector’s requests to go on the record about the apparent conflict between advising Ensey and making charging decisions about the raids as special prosecutors, and Ensey did not respond to an email seeking comment for this column.
Advice to Ensey
Even if there is nothing in writing showing Ensey expressly sought legal advice from Bennett, Wilkerson or others about how to respond to the aftermath of the searches, an attorney-client relationship can still be formed if the “reason” a person contacts an attorney is to “ seek legal advice” intended to be “confidential .”
Once that relationship is formed, rules apply.
Here, Ensey, as county attorney, after speaking to Bennett on Aug. 12 about “relevant case law,” sought advice about the validity of the Marion search warrants from Bennett, Wilkerson, and other prosecutors during a meeting two days later. The only reason the Aug. 14 meeting took place was to advise Ensey about how to respond to the search warrants. Ensey put the advice he received into practice on Aug. 16 when he issued the press release.
Moreover, although the gist of the communications between Ensey, Bennett, Wilkerson and the rest is now public knowledge, special prosecutors have kept confidential the substance of those discussions. Crucially, we don’t know the extent to which Ensey may have revealed information about wrongdoing before the raids, and if so, whether special prosecutors’ relationship with him has had any impact on their decision to charge only post-raid conduct.
There’s nothing wrong with lawyers helping other lawyers navigate their profession. But Bennett and Wilkerson learned information from Ensey they obtained only because they gave him advice about how to do his job during the days after the raid. The duty they owe him to keep that information confidential — consciously or subconsciously — make them ill-equipped to use that information as special prosecutors against the Marion-related officials involved in the raids.
Those officials, of course, included Ensey himself.
Analyzing the conflict
By serving as special prosecutors, Bennett and Wilkerson represent the state in a case involving Ensey. The people of Kansas are their client.
But if Ensey is a former client, then under ethics rules applicable to attorneys, Bennett and Wilkerson cannot now represent another client if that other client’s “interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.”
Certainly, the state’s interest in investigating crimes related to warrants Ensey knew about before they were executed is “materially adverse” to him. Even so, there is no evidence Ensey has, in writing, given his informed consent to being investigated by attorneys who previously advised him.
Still, in addition to waving away the problem because he claims special prosecutors’ relationship with Ensey was “so minimal,” Wilkerson justifies proceeding as the state’s attorney because the conflict is “ mentioned in the report .”
Acknowledging the relationship with Ensey in special prosecutors’ report was useful. But as the foregoing discussion of conflict-of-interest considerations suggests, whether an attorney discloses a conflict to the public is irrelevant to determining whether an impermissible conflict of interest exists.
Simply put, Wilkerson’s explanation is insufficient to justify why he and Bennett are qualified to perform special prosecutors’ duties in the Marion case given their previous relationship with Ensey.
New blood needed
Given these circumstances, there are numerous avenues to approach the Marion case differently.
The special prosecutors could step down.
The judge currently assigned to former police chief Cody’s case, Judge Ryan W. Rosauer, could appoint someone else “to act as county attorney .”
The county commission could “ employ an additional attorney at law to assist the county attorney.”
The judges in Marion County, led by Chief Judge Benjamin Sexton, could “ order a grand jury ” to determine whether additional charges are warranted.
The federal government, through the Department of Justice, could investigate whether the Marion raids and subsequent official actions amounted to a “ conspiracy against rights ” in violation of federal criminal law.
Kansans could also look back at one of their favorite sons, former governor and Republican presidential nominee Alf Landon, for guidance.
Almost 100 years ago, Kansans were swindled out of more than $1 million ( about $30 million today ) during the great Finney bond scandal of 1933, when state Treasurer T.B. Boyd gave politically connected banker Ronald Finney of Emporia “total access to the treasury vault.” Finney then stole “ whatever bonds he wanted and replace(d) them with forged duplicates.” Finney secured Boyd’s cooperation through favors such as an all-expense paid trip to Finney’s Colorado ranch.
Meanwhile, Finney, who had made his name as an investor on the commodities market, had cultivated an important client: Attorney General Roland Boynton. Less than two weeks before the scandal consumed the state in early August 1933, smack dab in the middle of the Depression, Finney delivered Boynton $700 on Boynton’s recent $400 investment.
Landon discovered Boynton’s relationship with Finney shortly after federal agents told him about Finney’s schemes. He immediately concluded that preventing the compromised attorney general from involvement in the scandal investigations was of paramount importance.
Fortunately, Landon was not stuck with a hopelessly conflicted attorney general’s office. Within days, Landon announced the appointment of a special counsel to the governor to investigate the bond scandal. In making that announcement to the public, he made clear that the investigation would be independent from the attorney general.
With an impartial third party in charge at the beginning, Finney, Boyd and Finney’s father were convicted of felonies , and Boynton was impeached (although he was acquitted by the Senate and subsequently involved in scandal-related prosecutions).
Made for Marion?
When this era’s history books are written, the Marion raids will be included with Finney’s heist among the great scandals in the state. The cases are also similar in that they both spawned extensive civil litigation and criminal investigations of public officials.
But the decisive action authorities took to punish those responsible in 1933 stands in stark contrast to law enforcement’s muted enthusiasm for punishing those responsible for the Marion raids 90-plus years later.
For starters, it’s remarkable that Wilkerson and Bennett agreed to take the case at all given their previous relationship with Ensey in the same matter.
At the same time, the agency responsible for investigating the raids, the Kansas Bureau of Investigation, a division of the Attorney General’s Office , has demonstrated a troubling pattern of deceiving the public about evidence in crucial investigations of law enforcement.
The attorney general’s ongoing noncommittal stance is nothing less than endorsement of special prosecutors’ inability to hold bad actors to account and deter future misconduct. In fact, that office still has yet to apologize for or even acknowledge the chilling effect it engendered two days after the raids, when KBI director Tony Mattivi announced that “ no one is above the law .”
Meanwhile, Gov. Laura Kelly says she is a “ strong advocate for freedom of press .” She could show us by taking a page out of Landon’s book and appointing an unbiased, credible special counsel to review the Marion-related evidence and decide which charges, if any, are warranted for the misrepresentations replete throughout the search warrant applications.
Finally, as a forthcoming column will explain in detail, substantial circumstantial evidence could well cause a jury to infer that Cody or others knowingly or intentionally misrepresented the severity of the alleged offenses to persuade a judge to sign off on the searches. Still, no crimes were charged for the fabrications included in the search warrant applications that underpinned the raids.
The absence of accountability for what happened before the raids sends an unacceptable message: that search warrants in violation of the First and Fourth Amendments are effectively legal in Kansas. Unless someone steps in, the credibility of the entire Marion investigation is compromised.
Max Kautsch focuses his practice on First Amendment rights and open government law. Through its opinion section, the Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here .
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