Transparency demands that Marion County attorney explain his role in ‘chilling’ newspaper raid

September 7, 2023 3:33 am

Distribution worker Barb Creamer sorts the Aug. 16, 2023, edition of the Marion County Record. The previous week, the newspaper had been raided by law enforcement. (Max McCoy/Kansas Reflector)

We know three things for certain about the probable cause affidavits behind the Aug. 11 raid on the Marion County Record newspaper.

One, we know the affidavits supporting search warrants were written by Marion Police Chief Gideon Cody. He signed them.

Two, we know the affidavits supporting search warrants were approved by Magistrate Judge Laura Viar. She signed them.

Three, we know that Marion County Attorney Joel Ensey announced he was withdrawing the warrants Aug. 16, after international condemnation.

What we don’t know is whether Ensey reviewed or otherwise saw the affidavits before they went to the judge. As chief law enforcement officer for Marion County, Ensey surely bears some responsibility for the chain of events that led to gross violations of First Amendment rights, not to mention the death of 98-year-old newspaper co-owner Joan Meyer. Newspaper editor Eric Meyer described the raid as “chilling,” and that chill has traversed a host of journalistic spines.

Yet the county attorney has thus far refused to say precisely what he knew and when he knew it.

That needs to change, and fast.

In my previous columns on this topic, I’ve singled out Cody and Viar for their roles in the raid, given that we can see their names on the documents. They bear clear responsibility. But Ensey’s role has remained an enigma, even as more people involved in the situation tell their sides of the story.

Eric Meyer is on the phone and seen reflected in a mirror
Eric Meyer, editor  of the Marion County Record, talks on the phone in his office seen through a mirror on his wall. (Sam Bailey/Kansas Reflector)


Who said what and when

Here’s what Ensey wrote in revoking the search warrants: “On Monday, August 14, 2023, I reviewed in detail the warrant applications made Friday, August 11, 2023 to search various locations in Marion County including the office of the Marion County Record.”

The date he gives came after the searches. The implication, then, would be that he didn’t know what Cody had planned for the watchdog news outlet.

Yet notice that he adds the words “in detail.” Could Ensey have reviewed the warrant applications more generally earlier?

Let’s move on.

On Aug. 26, the Washington Post published an in-depth story about the entire situation under the headline: “How a small-town feud in Kansas sent a shock through American journalism.”

Cody, who had previously refused comment to local news outlets, spoke to the Post. “He noted that he had no unilateral power to launch the raid, which he said was approved by a county attorney and a local judge,” according to reporters Jonathan O’Connell, Paul Farhi and Sofia Andrade.

“There’s no way someone can conduct a search warrant on their own without going through our series of checks and balances,” Cody said in the piece.

How interesting. The chief pretty clearly states that he had approval from a county attorney. Admittedly, Ensey isn’t mentioned by name.

Moving on to Sept. 1, KSHB-TV’s Jessica McMaster wrote a story about the very subject of this column. “Did the Marion County attorney review search warrants prior to newspaper raid? He won’t say.” She includes emails between herself and the county attorney in the article.

“I do not write or approve search warrants,” he responded at one point. Which, one might note, avoids the question entirely.

When pressed further, he only had this for McMaster: “At this time, I do not have any further comment.”

Okay, then. Another dead end.

A new lawsuit says Marion Police Chief Gideon Cody, top left, spearheaded the Aug. 11 raid of the Marion County Record in retaliation against the journalists who worked there. Reporter Deb Gruver's desk appears at the bottom right
A recent lawsuit says Marion Police Chief Gideon Cody, top left, spearheaded the Aug. 11 raid of the Marion County Record in retaliation against the journalists who worked there. Reporter Deb Gruver’s desk appears at the bottom right. She filed the lawsuit Wednesday in federal court. (Marion County Record screen capture of surveillance video)


The latest attempt

The most recent article (until this one) tackling the subject comes from the Wichita Eagle’s Chance Swaim.

He interviewed Marion Mayor David Mayfield in a piece published Saturday that has to be read to be believed.

“I mean, everybody’s looking at Marion like we’re a bunch of hicks now,” the mayor said, apparently not overthinking his words before continuing. “And the police department just did what the judge allowed them to do.”

Let’s not even pause for that comment. It’s worth a whole 800-plus words of commentary on its own. Instead, please note what Mayfield felt compelled to add via email after the interview.

“I double checked with Chief Cody and he assured me that it went to the county attorney and the county attorney skimmed over it and then had his secretary take it to the judge,” he said. “Chief Cody even has emails keeping the county attorney informed about this investigation beginning on August 8th.”

Ensey’s response echoed his words to McMaster: “I do not write or approve search warrants.”

He added: “To the extent that I can comment, I do not know that Mr. Mayfield was involved in the investigation. Further, Mr. Mayfield has not spoken with anyone at the County Attorney’s office.”

Fine. So the county attorney doesn’t sound overly pleased with the mayor.

A clock keeps track of time in the back room of the Marion County Record the week after the weekly newspaper was raided. (Max McCoy for Kansas Reflector)


Getting to the bottom of things

This back-and-forth isn’t doing anyone any good.

Ensey apparently doesn’t want to answer the question, and it’s easy to imagine why. If it ends up that he gave perfunctory approval to a raid that trampled the constitutional rights of a news outlet, he will face deserved approbation (Swaim notes that American Bar Association standards call for precisely this kind of review). On the other hand, if he wasn’t involved in the case at all, one might well ask why Marion should have a county attorney.

Avoiding the question, however, only delays the inevitable. We will know his role eventually. Enough lawyers and reporters have been unleashed that all pertinent facts will be revealed in their time. Stories have already spotlighted Ensey’s familial connections with the Historic Elgin Hotel, whose liquor license sits at the center of this whole small-town drama.

I would like to hear directly from the man himself.

In writing this column Wednesday afternoon, I did reach out to Ensey. In an email, I asked a single, simple question: “Did you review the affidavits for the search warrants in the Marion Record case before they were approved by Judge Viar?”

As of last night, he hadn’t responded.

Clay Wirestone is Kansas Reflector opinion editor. Through its opinion section, 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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Clay Wirestone
Clay Wirestone

Clay Wirestone serves as Kansas Reflector's opinion editor. His columns have been published in the Kansas City Star and Wichita Eagle, along with newspapers and websites across the state and nation. He has written and edited for newsrooms in Kansas, New Hampshire, Florida and Pennsylvania. He has also fact checked politicians, researched for Larry the Cable Guy, and appeared in PolitiFact, Mental Floss, and cnn.com. Before joining the Reflector in summer 2021, Clay spent four years at the nonprofit Kansas Action for Children as communications director. Beyond the written word, he has drawn cartoons, hosted podcasts, designed graphics and moderated debates. Clay graduated from the University of Kansas and lives in Lawrence with his husband and son.