Updates on Kansas newspaper raid: Search warrant revoked; judge has own DUI history

A prosecutor in Marion County, Kansas, has withdrawn the search warrant that sparked Friday’s controversial police raid of the small town’s newspaper offices.

Marion County Attorney Joel Ensey said in a statement Wednesday that the warrant was based on “insufficient evidence” that a crime had been committed. The seized electronics and documents will be returned to the Marion County Record.

The news followed days of criticism of the police search of the newspaper, which appeared to be aimed at finding evidence about how the paper obtained information that a local restaurateur, who applied for a liquor license, lost her driver’s license over a DUI in 2008.

In addition to the Record’s newsroom, the police also executed search warrants at the home of publisher and co-owner Eric Meyer and the home of Ruth Herbel, a Marion city councilwoman.

First Amendment advocates have said the raid went too far and violated legal protections for newsrooms.

Also Wednesday, new information was reported about the judge who signed the search warrant, who has her own history of drunken-driving arrests.

Here are the latest on developments following the raid on the Marion County Record:

Prosecutor orders seized materials to be returned to newspaper office

Marion County Attorney Joel Ensey has withdrawn the search warrant that led to Friday’s police raid. The warrant listed 15 categories of items police could seize on suspicion of “identity theft” and “unlawful acts concerning computers.”

Ensey said he concluded that “insufficient evidence” existed to establish a “legally sufficient nexus between this alleged crime and the places searched and the items seized.”

Bernie Rhodes, the Record’s lawyer who also represents The Star, said Wednesday that all the electronics police seized from the newsroom will be returned. But he argued that this is a small remedy to the harm caused by the raid.

“It does nothing about taking care of the damage that has already occurred from the violation of the First Amendment in the first place,” he told The Star.

Read more: Warrant for Kansas newspaper raid withdrawn by prosecutor for ‘insufficient evidence’

Judge who signed the warrant has her own DUI history

Magistrate Judge Laura Viar, who signed the warrant authorizing Friday’s raid, did so because of allegations that the newspaper had improperly obtained information about a local restaurant owner’s past DUI conviction.

But Judge Viar has a DUI history of her own. She has been arrested at least twice for driving under the influence in two different Kansas counties, an investigation by the Wichita Eagle reported Wednesday.

During a 2012 incident in Morris County, she allegedly drove off-road with a suspended license and crashed into a school building while under the influence. She was running unopposed for Morris County Attorney at the time — and won.

Viar was not sanctioned by the state’s attorney discipline board.

Read the investigation: Judge who approved raid on Kansas newspaper has history of DUI arrests

Marion locals react to the newspaper’s police raid

Tensions ran high in the small town of Marion on Tuesday as residents reacted to Friday’s raid. The newspaper has received support from around the country, including over 1,000 new digital subscriptions in the days since the raid alone.

One resident classified the paper’s coverage as “negative,” while another praised the paper for its watchdog reporting on local government and business issues.

“This newspaper is very good at investigative reporting,” he said.

Read more: Raided Kansas newspaper is known for aggressively covering small town’s many disputes

KBI took over the investigation Monday

The Kansas Bureau of Investigation became the “lead law enforcement agency” in the investigation of the Marion County Record on Monday, The Star’s Jonathan Shorman reported.

KBI spokesperson Melissa Underwood told The Star that the agency will “review prior steps taken and work to determine how best to proceed with the case,” which involved a now-withdrawn search warrant suggesting that the newspaper’s offices contained evidence of identity theft and improper use of computers.

It’s unclear why the KBI, a state agency based in Topeka which provides advanced law enforcement services like forensic lab testing and special operations, took over this case.

Read more: KBI takes lead in Marion investigation following police raid of local newspaper

The newspaper had previously investigated Marion’s new police chief

The Record had previously investigated Marion’s new police chief, Gideon Cody, at the time of the raid. Cody had recently started the job after 24 years as a captain with the KCPD.

Editor and publisher Eric Meyer declined to comment on the exact nature of the investigation, but characterized “the charges as serious.” The paper informed city officials of allegations against Cody, but had not published anything about them at the time of the raid.

“I have already been vetted. They’ve (the newspaper) actually did a background on me. And that’s why they chose not to (publish a story),” Cody said in a Sunday interview with The Star.

“However, if they can muddy the water, make my credibility look bad, I totally get it. They’re gonna try to do everything they possibly can.”

Read more: Kansas newspaper raided, shut down by police had investigated chief who came from KCPD

The Star’s Luke Nozicka, Jonathan Shorman, Katie Moore, Glenn E. Rice and Judy Thomas contributed. The Wichita Eagle’s Chance Swaim contributed.

Do you have more questions about the police raid on the Marion County Record’s offices? Ask the Service Journalism team at kcq@kcstar.com.