Former Marion chief calls KBI’s investigation into newspaper raid ‘a conflict of interest’

Former Marion Police Chief Gideon Cody claimed in a court filing Wednesday that the Kansas Bureau of Investigation reviewed the search warrant applications that allowed him to raid the Marion County Record.

The state’s top investigative agency, which took over the Marion case following the raid, has not publicly said it is investigating Cody for his actions. But the former police chief said in his filing that the KBI’s continued investigation was “a conflict of interest.”

Cody’s filing, which came in response to a lawsuit filed by Marion County Record reporter Deb Gruver, provides the most detailed account thus far of the events leading up to the search of the local newspaper.

It also provides new details on the possible involvement of state law enforcement officers in the raid of the paper’s newsroom as well as the private residences of Record publisher and editor Eric Meyer and Vice Mayor Ruth Herbel.

Meyer’s mother, 98-year-old Joan Meyer, died the day after the raids after resisting officers’ search of the home she shared with her son.

A KBI agent opened a case file to assist Cody in the investigation prior to the raid, the filing says. But the state’s top law enforcement agency never raised any concerns about raiding the local newspaper.

“The KBI never advised Cody that his search warrant affidavits or the draft search warrants themselves lacked probable cause or were in anyway [sic] improper,” Cody’s filing says.

Following reporting published Tuesday by the Associated Press detailing records that showed the Kansas Bureau of Investigation’s prior knowledge of the search warrant, a spokesperson for KBI declined to answer questions about the extent of the agency’s involvement or why the agency did not raise concerns about violations of Kansas’ Shield Law, which protects newsrooms from such raids.

“Your questions are fair and we will answer them, but because they require a detailed response it is inappropriate for us to address them until our investigation concludes,” Melissa Underwood, a spokeswoman for the KBI, said in an email Wednesday.

Finger pointing

The Aug. 11 raid has been loudly condemned by First Amendment advocates for its apparent violation of federal law that protects journalists from searches and seizures. The KBI took over the investigation on Aug. 14, and Marion County Attorney Joel Ensey revoked the warrants two days later, saying they lacked sufficient evidence to justify raids.

The KBI now controls the investigation and has declined to provide any updates. Tony Mattivi, director of the KBI, was criticized for comments he made in the aftermath of the raids. He said freedom of the press “is a vanguard of American democracy” but members of the media are not “above the law.”

The agency has declined to answer questions about whether it expanded its scope to include an investigation into Cody’s actions, which included directing Marion restaurant owner Kari Newell to delete text messages between the two of them. The raid centered around Cody’s alleged concerns that Herbel and newspaper staff illegally accessed Newell’s driving records.

Cody, who argued Wednesday he had qualified immunity, has mostly declined to comment or ignored questions in the weeks after the raid drew criticism from First Amendment advocates across the country. Marion Mayor David Mayfield, who had defended Cody’s actions and vowed not to suspend him until the KBI finished its probe, suspended him last week and on Monday he resigned. Cody is being represented by Marion’s insurance company’s lawyers Jennifer Hill and Edward Keeley of McDonald Tinker.

In a court filing Wednesday Cody, while definitely insisting newspaper employees broke the law, pointed the finger at other law enforcement agencies and officials. He also repeated statements made by Mayfield: someone from the Marion county attorney’s office delivered the warrant to Magistrate Judge Laura Viar for approval and Viar denied an additional search warrant at the residence of Pam Maag, the person who initially accessed and shared Newell’s records from the Kansas Department of Revenue.

Cody also provided further details on Officer Zach Hudlin’s role in the investigation. Hudlin was named acting chief on Monday after Cody resigned.

Hudlin tied Record reporter Phyllis Zorn to downloaded records from the Kansas Department of Revenue records around the time Kari Newell’s records were downloaded. His conversations with KDOR provided the basis for the search warrant: “Hudlin was advised that the record in question was not a public record.”

KDOR has since told The Kansas City Star that those records are open and available to the public.

Cody claimed in his filing that KBI agent Todd Leeds and KBI supervisor Bethanie Popejoy “reviewed in whole or in part” the warrant applications beforehand. “KBI Agent Leeds specifically opened a KBI case file and received authority from his supervisor Bethanie Popejoy to assist Cody and participate in the criminal investigation.”

Cody also claims in the filing that Marion County Attorney Joel Ensey participated “in emails and meetings” leading up to the raids but later told 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.”

Five days after Cody served the warrants, Ensey revoked the warrant for insufficient evidence.

‘Where’s the proof?’

Bernie Rhodes, an attorney representing The Record, said Cody’s account of events is unreliable. He noted that Cody claims in the record that a representative of the county attorney’s office delivered the warrants, but the warrant application, Rhodes said, includes a line in which Viar says Cody swore to the information in front of her.

Rhodes, who has also represented The Star and The Eagle, said Cody appeared to be attempting to pass off blame to other agencies, like the KBI.

“Cody might claim all these things but where’s the beef? Where’s the proof of that?” Rhodes said. “They may have known about it, they may have thought about it, but they didn’t do it. Cody did it.”

Cody also objected to claims he had been involved in misconduct during his time at the Kansas City Police Department. However, he said, he had been disciplined five times in his career for failing to use sirens when driving through an intersection, repeatedly calling a murder suspect in an attempt to convince him to surrender, cursing at a subordinate, participating in a police chase and “telling an inappropriate joke.”

Kansas City Police Department sources told The Star in the days following the raid that Cody was facing discipline and demotion when he left the urban agency because of insulting and sexist remarks he made to a female officer. That officer allegedly filed a hostile work environment complaint against Cody and Cody had been told he would be demoted at the completion of the investigation.

Two days after the raids, Cody released a statement defending his actions and the action of other law enforcement involved.

“I believe when the rest of the story is available to the public, the judicial system that is being questioned will be vindicated,” he said in the statement.

In an email, Gruver’s attorney Blake Shuart, said his team was evaluating whether Cody’s admissions in his filing necessitated an automatic judgment in Gruver’s favor.

“We are looking forward to discovery and questioning the former Chief under oath,” Shuart said. “The former Chief wanted ‘the rest of the story’ to come out and we are working on Deb’s behalf to make sure that happens.”