Marion Vice Mayor Ruth Herbel on Monday publicly accused Marion Police Chief Gideon Cody of committing crimes during a series of raids last month that included her private home and the Marion County Record’s newsroom.
And she said Mayor David Mayfield is violating his duty as mayor by failing to suspend Cody for what she called an illegal search and seizure at her house on Aug. 11.
The search warrants for her house, The Record’s newsroom and the home of its owner, publisher and editor were revoked by the county attorney five days later for insufficient evidence. The seized materials were returned, and the Kansas Bureau of Investigation took over the investigation, which is ongoing.
Cody remains on the job as the chief of Marion police.
Herbel, citing a discrepancy between the search warrant and search warrant applications, said she believes Cody falsified documents to illegally obtain a search warrant at her house and failed to inform her of the crimes she was being investigated for.
Herbel said she has not filed a formal complaint against Cody or Mayfield with any law enforcement agency. But she plans to file a federal lawsuit this week, she said.
“I turned this over to my attorneys,” Herbel said. “I haven’t talked to KBI yet. But when I do talk to KBI, I will certainly mention that. But I turned it over to my attorney, and they are making the decisions who’s responsible and who’s getting a lawsuit against them.”
The allegations came during the Marion City Council meeting, where three of the city’s five council members — Mayfield, Zach Collett and Kevin Burkholder — blocked Herbel’s move to discuss Cody’s employment during an executive session.
It’s the latest development in a controversial law enforcement action that brought international attention to the small town about 60 miles north of Wichita. Cody’s raids have been condemned by free press advocates as government overreach and an attack on the First Amendment.
Herbel, 80, said she and others in the Marion community live in constant fear of Cody and his officers after they executed search warrants to investigate a complaint by restaurant owner Kari Newell, who was upset that they had uncovered records of her drunken driving history as she was seeking a liquor license.
“I’m terrified of him,” Herbel said of Cody in an interview with The Eagle. “My kids told me to put up security cameras. I’m wondering if I should go out and buy a pistol. I grew up with guns, so they don’t really scare me. But that man scares me.”
Herbel is pushing for Cody to be suspended. Mayfield could suspend Cody or a majority of the council could vote to put him on paid administrative leave. Herbel said a majority of the council has sided with Mayfield, who said he is waiting for the Kansas Bureau of Investigation to complete its investigation to take any action.
Herbel said at Monday’s meeting Cody “falsified records” to commit “criminal fraud” by lying on his search warrant application to obtain illegal search warrants, so there is no need to wait.
Herbel said the search warrant provided by Marion police on Aug. 11 does not match the application that was filed with the district court on Aug. 14. Both copies, provided to The Eagle by Herbel, are signed by Cody and Magistrate Judge Laura Viar. Both allege Cody had probable cause to believe Herbel committed identity theft.
But the search warrant documents differ when it comes to a second crime alleged by Cody. The warrant says he had probable cause to believe Herbel committed “unlawful acts concerning computers.” But the warrant application, filed with the District Court Aug. 14, did not include that allegation. It said Cody had probable cause to believe she committed “official misconduct.”
The difference means Herbel was not made aware of what crimes she was under investigation for when authorities entered her home and removed items of interest, including her personal computers and cellphone.
Herbel said the change constitutes “criminal fraud” by Cody in order to get the search warrant and shows that his investigation was on shaky ground to begin with.
“He (Cody) falsified the documents by changing the warrant after it had been served to me by changing the words ‘identity theft and unlawful acts concerning computers’ to ‘identity theft and official misconduct’ before filing the warrant in district court,” Herbal said. “This is criminal fraud committed by a person acting under the color of law. This, within itself, should be enough to suspend Cody until the KBI completes its investigation.”
The timing of the change is unclear. The search warrant was signed and dated at 9:05 a.m. on Aug. 11. The signature line on the warrant application is dated Aug. 11, with no time stamp, and was not filed in district court until 8:23 a.m. on Aug. 14.
Cody did not attend the council meeting and did not respond to emailed questions.
Herbel said Mayfield is in violation of a state law — K.S.A. 14-307 — that requires mayors to “cause all subordinate officers to be dealt with promptly for any neglect or violation of duty.”
Mayfield did not respond to Herbel’s comments during the city council meeting and did not respond to a request for comment for this story. He previously defended Cody’s actions.
“As far as I’m concerned, Cody has violated his duty all over the place,” Herbel said. “And I would complain to the attorney general, if I thought the attorney general would listen. But I really doubt that he will. So we’re kind of out here in the sticks by ourselves.”
If filed, Herbel’s lawsuit will be the second federal suit against Cody in the Marion incident. Record reporter Deb Gruver, who had been digging into Cody’s questionable exit from the Kansas City Police Department, sued Cody last month for violating her rights by seizing her personal cell phone — an item that was not included in the search warrant affidavit — and re-injuring her finger.
Herbel said there was no need to search her home because she turned over all the information she had — which had been given to her by community member Pam Maag — to City Administrator Brogan Jones before the raids.
Maag told The Eagle that she legally obtained Newell’s records through the state’s court records system and a publicly available online database maintained by the Kansas Department of Revenue. She said she sent copies to Herbel and The Record.
“It was not CJIS, the Kansas criminal justice database system,” Maag said. “You have to have a token to get into that. Those tokens are set to each individual. They’re trackable. You have to get a new one every two years. So, no, it never went through CJIS. It never went through law enforcement. It was all done based off the Kansas Department of Revenue and the Odyssey court system.”
Maag also addressed the Marion City Council on Monday.
“If you would have called me, . . . all of this wouldn’t have happened,” Maag said. “I would have told you who I sent it to, and I would have told you why.”
But Cody didn’t interview Maag, though he did mention her in his applications for search warrants.
Instead, Cody opened an investigation into Herbel and The Record for computer crimes and identity theft, alleging that they must have stolen Newell’s identity to access her driver’s license records on the Kansas Department of Revenue’s public database. He sent his entire police department and multiple Marion County sheriff’s deputies to Herbel’s house, the newsroom of the Marion County Record and the home of its owners, Eric Meyer and his mother, 98-year-old Joan Meyer, who died of sudden cardiac arrest the day after the raids.
Marion County Attorney Joel Ensey later revoked the search warrants and called for the seized items to be returned, saying in a written statement that “insufficient evidence exists to establish a legally sufficient nexus between this alleged crime and the places searched and the items seized.”
Herbel said Cody’s raid, which included at least five law enforcement officers, “terrified and mortified” her husband, who suffers from dementia.
“A majority of the council is hoping it’ll all blow over, and we’ll pretend it didn’t happen,” Herbel said. “But you can’t pretend something like this didn’t happen. They terrified that 98-year-old woman so much that she died the next day. And that was the worst thing about this whole thing and the fact that they’ve terrified my husband and traumatized him, and he’s still not back to normal.”
Meyer, The Record’s owner, publisher and editor, expressed frustration after Monday’s council meeting that the warrant at Herbel’s house has gotten less attention than the newspaper raid.
“I feel really sorry for Vice Mayor Ruth Herbel,” Meyer said. “There’s not a national association of vice mayors to come defend her the way there is with journalism groups defending us. The warrant against her — there’s not even cause. She’s not accused of committing a crime. There’s no probable cause. Everything they could have found, she’d already given them. So why raid her house?”