Lawyer intervenes to ensure return of newspaper data secretly seized
Sep 1, 2023
PHYLLIS ZORN
Staff writer | Marion County Record
Although Marion (Kansas) police and the sheriff's office were ordered Aug. 16 to return items seized during raids Aug. 11 at the Marion County Record and the home of its owners, it took a threat Thursday, Aug. 17, to have Sheriff Jeff Soyez held in contempt of court to retrieve data secretly copied from Record computers.
Attorney Bernie Rhodes, who represents the Record, discovered that a list provided to the Record of items in the raid was eight items long, but that ninth item had been added to a copy of the list retained by law enforcement.
The ninth item appeared to be a USB drive that was used to copy data from a Record computer and from other computers networked to it. The copied material was not handed over Aug. 16.
“Because that drive is still in the sheriff’s office’s custody, that means the sheriff still has access to the Marion County Record’s data — data that is both constitutionally protected and protected by federal and state law,” Rhodes wrote in a letter Wednesday, to county counsel Brad Jantz. “This access is illegal. It also clearly violates the district court’s Aug. 16 order.”
Rhodes pointed out that he had called Jantz’s cellphone Monday and Tuesday but couldn’t leave a message because Jantz’s voice mail was full.
He also called Jantz’s office both days and left messages with a receptionist in which he identified himself as the Record’s attorney.
“Despite the receptionist telling me she would let you know I called, you never called me back,” Rhodes wrote. “The sheriff’s failure to comply with the district court’s order is inexcusable, and I will not stand by and wait for you to choose to return many calls.
“Unless you and I are able to come to a satisfactory agreement by the end of the day Thursday on disposition of this — and any other items not previously released and returned — I will file a motion to hold the Sheriff in contempt of court for his failure to comply with the district court’s order.”
County attorney Joel Ensey was copied on the letter.
Although Jantz still didn’t respond, Rhodes, Ensey, Undersheriff Larry Starkey and deputy Aaron Christner met Thursday morning to discuss the matter.
The reason the sheriff's office has not returned the data was because the USB drive that was used to copy the 17 gigabytes of data also contained data from other investigations, Rhodes said.
They agreed that a copy of the data would be given to Rhodes and the data would be deleted from the USB drive and, presumably, multiple other locations to which it has already been copied.
The sheriff’s office wanted a court order to delete the data so as to not “destroy evidence,” Rhodes said. A request for such an order, agreed to by both sides, was being drafted Thursday.
Rhodes also might ask authorities to release to him and then destroy from police and sheriff’s records a large number of photographs of newspaper and other documents that surveillance video indicates were made during the illegal raid on the newspaper and home of its owners.
The agreement reached Thursday satisfied Record Publisher Eric Meyer.
“If Larry Starkey tells us no one has looked at any of the data, regardless of the number of times it has been copied to other locations, I believe him,” Meyer said. “I trust the undersheriff. He has been very cooperative and honest with us.”
Authorities’ explanations of how the copying took place led Meyer to believe that an archive of 15 years of confidential email sent to and received by the Record might have been scanned along with a similarly large archive of published news stories, but not confidential statements and document from sources concerned about hiring of Marion Police Chief Gideon Cody, who requested the search.
Newspaper equipment returned
Computers, cellphones and other electronic equipment grabbed by police during a raid Friday, Aug. 11, on the Marion County Record office the home of its owners were released Wednesday under an agreement between the Record’s lawyer and the director of the Kansas Bureau of Investigation.
A warrant for the search had been obtained by Marion Police Chief Gideon Cody with assistance from county attorney Joel Ensey.
Kansas City lawyer Bernie Rhodes told the Record at 11 a.m. that KBI Director Tony Mattivi had said Ensey would bring the Record a news release that would later be given to other news outlets. The Record’s equipment would then be released.
Ensey did not show up any time Wednesday, Aug. 16. Instead, KBI issued a general public press release at 12:30 p.m.
According to KBI’s release, “At present time, this investigation remains open; however, we have determined in collaboration with the Marion County attorney that the investigation will proceed independently and without review or examination of any of the evidence seized on Friday, Aug. 11.”
KBI spokesman Melissa Underwood said findings would be given to the county attorney for review.
An attached press release from the county attorney admitted that he had reviewed warrant applications three days after the searches and seizures.
“Upon further review, however, I have come to the conclusion that insufficient evidence exists to establish a legally sufficient nexus between this alleged crime and the places searched and the items seized,” Ensey wrote. “As a result, I have submitted a proposed order asking the court to release the evidence seized. I have asked local law enforcement to return the material seized to the owners of the property.”
Despite Ensey’s statement, Vice Mayor Ruth Herbel, whose home also was raided Friday, said her property had not been released.
By arrangement between the Record’s lawyer and the sheriff's office, the Record’s equipment was released to a forensic investigator for examination to confirm or deny that the equipment had not been reviewed or examined, as Underwood said. A Record reporter observed the release of property to the investigator.
