Marion Mayor David Mayfield says he’s not “sure exactly what they did wrong” when the Marion police department executed search warrants at a newspaper office and two homes for evidence of computer crimes.
And he says if there was a problem with the search warrants, the county attorney or judge should have rejected them beforehand.
“I mean, everybody’s looking at Marion like we’re a bunch of hicks now,” Mayfield told The Eagle recently in his first extensive interview since the raids. “And the police department just did what the judge allowed them to do.”
The Aug. 11 searches carried out by Marion Police Chief Gideon Cody — along with five police officers and two sheriff’s deputies — at the Marion County Record and at the homes of newspaper publisher Eric Meyer and Vice Mayor Ruth Herbel drew international condemnation as an assault on the free press.
Meyer’s 98-year-old mother, Joan Meyer, died the day after officers rifled through her belongings and seized her devices as she decried what she later called “Hitler tactics.”
Cody said in the applications for the warrants that police were searching for evidence of identity theft, computer crimes or, in Herbel’s case, official misconduct after restaurant owner Kari Newell publicly accused them of illegally sharing records related to her drunken driving history as she was seeking a liquor license for her business.
Marion County Attorney Joel Ensey revoked the search warrants five days later, saying there was insufficient evidence.
“Why didn’t he (Ensey) do that in the first place?” Mayfield asked.
Mayfield said he’s “perplexed” that people are more upset with Cody, a newly hired police chief, than with Ensey and Magistrate Judge Laura Viar, the two people with law licenses who he said were supposed to make sure the warrants were legally sound.
No plans to suspend police chief
Mayfield said he has no plans to suspend Cody or take any action as mayor until the Kansas Bureau of Investigation releases its findings.
He would not comment on the criminal investigation, but talked about who may have been involved in preparation for the raids. That’s based in part on information he said was provided to him by Cody, who did not return phone calls or emailed questions this week.
Mayfield said Ensey played an active role in seeking the search warrants on Aug. 11. He said Ensey reviewed the warrant applications and someone from his office delivered them to Viar for approval.
“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,” Mayfield wrote in an email to The Eagle after the interview. “Chief Cody even has emails keeping the county attorney informed about this investigation beginning on August 8th.”
Prosecutors involved in criminal investigations are supposed to review search warrant applications before they go to a judicial officer, according to standards adopted by the American Bar Association, an influential national organization that sets ethical standards for lawyers across the United States.
County attorney: ‘I do not approve search warrants’
Ensey did not return phone calls or answer questions for this story, but he said in an email that “I do not write or approve search warrants.”
He did not say whether he reviewed the warrant applications brought by Cody.
He said in the email that Kansas Supreme Court rules limit what he can say about a case.
“To the extent that I can comment, I do not know that Mr. Mayfield was involved in the investigation,” Ensey wrote. “Further, Mr. Mayfield has not spoken with anyone at the County Attorney’s office.”
Mayfield said the police chief felt he was on solid legal footing with implied approval from the prosecutor and explicit approval from the judge.
“(Viar) says, ‘Yeah, there’s probable cause in the affidavit that’s written; I’m going to issue the search warrant,’ and she signs it. So my police department serves a valid search warrant signed by a judge. I mean, they assume it’s valid because it was approved, so I’m not sure exactly what they did wrong.”
“Days later, he (Ensey) comes out and says, ‘Well, I reviewed the affidavit, and there’s not probable cause for a search warrant to be issued.’ Well, if he had done that in the first place, we wouldn’t be sitting here talking about it,” Mayfield said. “There would never have been a search warrant served.”
Mayfield said police sought an additional search warrant related to the tipster who shared documents with The Record and Herbel. A judge rejected it, he said, but he’s not sure why.
Viar did not respond to written questions and has not commented publicly on the case.
Mayor a former Marion police chief
Mayfield, a former Marion police chief and retired officer for the Kansas Highway Patrol, said he has never served a search warrant. He would not say whether he would have sought one if he were still chief. He was elected mayor in 2019 and is not seeking re-election this year. He said he has accomplished everything he set out to accomplish, including an increased focus on the city’s infrastructure.
He said he had no say in Cody’s decision to seek a warrant though he acknowledged that Cody made him aware of the investigation before doing so.
“My involvement in this whole thing is zero, and I’m getting death threats from supporters of the Marion County Record,” Mayfield said.
“I don’t know nothing about it. I really don’t,” Mayfield said. “And I’ll tell you that the only thing I know about the situation that’s happened here — which is sad — is the fact that the chief informed me that one of my council members was being investigated, and I told him then I don’t want to know nothing about it. That’s a criminal investigation. There’s no reason for me to know anything.”
Newell’s complaint, police response
Newell accused The Record of illegally obtaining her personal information relating to her drunken driving record at an early August city council meeting. She accused Herbel of using the information to try to stop her from getting a liquor license for her restaurant.
Cody, in his search warrant application, said the newspaper could have accessed Newell’s Kansas Department of Revenue records only through illegal means. He pursued Herbel under suspicion of identity theft and official misconduct.
The Record actually accessed Newell’s driver’s license records through a publicly available state website to verify information provided by a tipster. Herbel apparently received the information from the same source.
Cody, appointed by Mayfield in late May, knew The Record was digging into his background at the Kansas City Police Department, where he left as a captain facing demotion.
After Newell’s complaint, he and his officers raided The Record’s newsroom, seizing computers, hard drives, cellphones and other materials that included information about confidential sources who contacted The Record about his past.
Cody also seized Record reporter Deb Gruver’s cellphone, which was not listed in the warrant, and her computer. She filed a federal lawsuit against him that alleges he was retaliating against her for digging into his background in the Kansas City Police Department.
Ensey’s decision to revoke the search warrant allowed the seized materials to be returned to their owners and took them out of the hands of Marion police and sheriff’s office employees. The KBI took over the investigation without that evidence, and Ensey could have the ultimate say in whether to file any criminal charges.
Ensey’s potential conflict with the case has already been reported. Newell’s liquor license would directly benefit Ensey’s brother and sister in-law, who own the Historic Elgin Hotel and recently sold a restaurant inside it to Newell. Ensey would not answer questions about his family’s financial ties to Newell.