Report faults inadequate law enforcement investigation, clears journalists

TOPEKA — Special prosecutors plan to charge former Marion Police Chief Gideon Cody with a low-level felony for his actions following the raid he led last year on the Marion County Record and the homes of the newspaper publisher and a councilwoman.

But the special prosecutors also concluded that police — despite their misunderstanding of evidence, a rushed investigation, and faulty and unlawful search warrants — didn’t commit any crimes by investigating a baseless suspicion of identity theft or carrying out the raid.

Riley County Attorney Barry Wilkerson and Sedgwick County District Attorney Marc Bennett released their conclusions in a 124-page report on Monday.

“There is no evidence that Marion law enforcement agents recognized the inadequacy of the investigation or intentionally or knowingly misled either other law enforcement agents or the court,” the prosecutors said. “The evidence strongly suggests they genuinely believed they were investigating criminal acts.”

The report also clears Marion County Record reporter Phyllis Zorn and editor Eric Meyer of wrongdoing.

“Their report makes it clear that they arrived at this conclusion mere days after the raid,” Meyer said. “Yet they left us swinging in the wind. That’s disappointing, to say the least. We are pleased that they believe, as we long have, that Gideon Cody violated state law. Unfortunately, others involved in case — those who didn’t flee the state — seem to have escaped similar scrutiny.”

When Cody led the raid on Aug. 11, 2023, he violated constitutional protections, upended lives, spawned five federal lawsuits, and cast a shadow over the east-central town of about 2,000.

The prosecutors’ report, which based on findings from the Kansas Bureau of Investigation and Colorado Bureau of Investigation, details the small-town drama that precipitated Cody’s investigation, as well as his attempt to leverage the KBI for support before and after the raids.

KBI special agent in charge Bethanie Popejoy told investigators that Cody called her two days after the raid while she was in church service. She stepped outside to take the call.

She said Cody told her: “This is a mess. I really wish you guys would take this over.”

“And I said, ‘Well, it’s a little f***in’ late for that now,” Popejoy said.

Although KBI agents had agreed to join Cody in the investigation before the raid, they had not yet reviewed evidence at the time of the raid. Popejoy said when she first read the search warrants several days after the raid, she was “shocked, angry, disappointed, (in) disbelief.”

Cody, faced with intense national scrutiny, asked the KBI to issue a public statement defending his character. Popejoy declined.

“He was just a rabid squirrel in a cage and just off doing his own thing, and then, ‘Well, I really feel like you guys are abandoning me,’ ” she said.

The report closely analyzes restaurateur Kari Newell’s drunk driving record, which became a catalyst for the raid. Newell’s estranged husband, who told investigators he was tired of paying for tags and insurance on her car while going through divorce proceedings, sent a copy of Newell’s driving record to friend Pam Maag, who in turn sent the record to reporter Phyllis Zorn and Councilwoman Ruth Herbel. Maag believed Newell’s DUI and suspended license would be relevant to Newell’s request for a liquor license.

Zorn called the Kansas Department of Revenue to verify the driving record and was given instructions on how to use the agency’s online database to look up the record, which she did. Meyer then notified police they had received and verified the driving record.

Cody, a former Kansas City, Missouri, detective who was not yet certified as a law enforcement officer in Kansas, asked Officer Zach Hudlin to help him investigate because Cody “didn’t 100% know Kansas law,” Hudlin told the CBI.

The report includes a transcript of a conversation between Hudlin and a KDOR representative about the agency’s online database. Based on that call, Hudlin erroneously assumed Zorn had violated numerous crimes by looking up the public record.

“It is difficult to ascertain whether Officer Hudlin’s conclusions were the product of confirmation bias, a hurried investigation or simply a misunderstanding of what the KDOR representative was trying to explain,” the special prosecutors wrote.

Cody emailed search warrant applications to County Attorney Joel Ensey and pressured the prosecutor to act quickly, Ensey told investigators. Ensey said he was too busy preparing for other cases to read the warrants and asked an office manager to take them to the judge.

Ensey recalled telling his assistant: “I don’t know why the f*** we’re in such a f****** hurry for this thing.”

When questioned by investigators, Cody couldn’t remember if he signed the search warrants in front of Magistrate Judge Laura Viar, but he recalled answering a few questions for her.

Viar said Cody had given her the impression that the KBI supported the search warrants. After the raid, Cody texted Ensey to say the KBI was “100% behind me and we did things exactly as it should have been done.”

Popejoy said Cody “had to live in fantasy land to get that picture.”

“I probably called him and said, ‘What’s going on?’ But at no point did I say, ‘Everything you did is OK.’ ” she said.

Cody resigned in October after KSHB-TV reported he had instructed Newell to delete text messages between them. Hudlin is now the acting police chief.

Special prosecutors said Cody’s actions regarding text messages will provide the basis for a criminal charge of obstructing the judicial process, a low-level felony.

“With so many law enforcement officers aligned against me, there were times I worried, but I have hope that justice would be done,” Zorn said in a phone interview after the report was released.

Emily Bradbury, executive director of the Kansas Press Association, said she welcomed the conclusion that Marion County Record journalists acted lawfully and that Cody will face criminal charges.

“This development is a crucial step towards accountability and justice,” Bradbury said. “The misuse of power to intimidate or silence journalists is a grave threat to our democracy, and those responsible must be held to account.”

The special prosecutors rejected the theory that Cody and others carried out the raid in retaliation against the newspaper and political adversary, even though there was no reason to believe anybody had committed a crime, and no basis for searching the homes of Meyer and Herbel.

“The most plausible explanation, as evidenced by Chief Cody’s repeated statements in contemporaneous emails, reports and statements to others, is that he and the officers working with them genuinely reached the conclusion that they had uncovered a crime,” the prosecutors wrote.

Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.

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