Prosecutors hired to investigate the search warrants executed on a Kansas newspaper and the homes of an editor and reporter claim that the police chief who led the operation violated the law by obstructing their investigation.
Former Marion Police Chief Gideon Cody induced a witness or informant to withhold or unreasonably delay the production of testimony or information, special prosecutors Marc Bennett and Barry Wilkerson say.
The restaurant owner has said that Cody asked her to delete the messages out of fear that people could get the wrong idea about their relationship, which she said was professional and platonic.
A voicemail seeking comment was left at a cellphone number believed to belong to Cody. It wasn’t clear who might represent him in the potential criminal case, and his attorneys in multiple federal lawsuits related to the raid didn’t return a telephone message.
Cody and officers under his command carried out warrants at the Marion County Record, as well as the homes of Eric Meyer, the Record’s editor, and Phyllis Zorn, a Record reporter, based on suspicion that employees of the paper violated state laws when they obtained the driving record of the restaurant owner.
However, Bennett, the district attorney in Sedgwick County, and Wilkerson, the chief prosecutor in Riley County, found that the newspaper employees didn’t violate any laws.
The employees originally obtained the driving record from a source. Meyer instructed Zorn to check with the Kansas Department of Revenue about the record. Zorn was able to access the record on the department’s website, with help from a department employee.
“Phyllis Zorn committed no crime under Kansas law when she obtained the driving record of Kari Newell,” the prosecutors said. They added later that Meyer also committed no criminal acts.
The estranged husband of restaurant owner and Marion County Councilwoman Ruth Herbel, along with a local woman who received the driving record from the estranged husband and sent it to Zorn and Herbel, didn’t violate any laws because the information was publicly accessible, unaltered, and wasn’t used to defraud the owner, according to the prosecutors’ Aug. 5 report.
The warrants were the result of a rushed investigative process that hinged on an apparent misconception by Marion County officers about how the Kansas Department of Revenue website worked, the prosecutors determined. The process included not waiting for the Kansas Bureau of Investigation, which had been consulted by Cody, to analyze the allegations before seeking and carrying out the warrants.
Prosecutors said there was no evidence that Cody or the officers committed crimes in crafting and executing the warrants because they believed that the law had been broken.
“Put another way, it is not a crime under Kansas law for a law enforcement officer to conduct a poor investigation and reach erroneous conclusions,” they wrote.
But Cody did obstruct justice, they concluded.
It wasn’t clear whether Marion County officials planned to charge Cody with a felony or a misdemeanor. Either is possible.
Seth Stern, director of the Freedom of the Press Foundation, said in a statement that Cody should face other charges in addition to obstruction of justice.
“The raid itself was criminal,” he said. “And Cody is far from the only one at fault here.”
Meyer said he’s grateful that prosecutors found that the newspaper’s staff committed no crimes, though he questioned why it took them a full year. He also expressed frustration that Cody is the only official expected to face criminal prosecution.
“What I feel is going on here is that he’s been set up as the fall guy,” Meyer said.
