Q&A with Riley County Attorney Barry Wilkerson

TOPEKA — One of the special prosecutors tasked with reviewing the actions of law enforcement officers who raided the Marion County Record says more details will become public as criminal and civil cases proceed.

But for now, Riley County Attorney Barry Wilkerson would prefer to let the report that he and Sedgwick County District Attorney Marc Bennett released earlier this month speak for itself.

Their report cleared former Marion Police Chief Gideon Cody and other officers of criminal wrongdoing in planning or carrying out the raid, even though the officers had imagined a nonexistent crime, and ignored state and federal laws and constitutional protections. But Wilkerson charged Cody with obstruction of justice, accusing the chief of telling a woman to delete text messages the two had exchanged.

In his first interview since that report was released, Wilkerson answered questions about the special prosecutors’ conversations with Marion County Attorney Joel Ensey immediately after the raid, the decision to present evidence against Cody through testimony from a Colorado Bureau of Investigation agent rather than an affidavit, and the public interest in more transparency surrounding the case. But he was cautious about saying anything that could affect his criminal case or any of the five federal civil lawsuits that have been filed.

Wilkerson said he doesn’t expect to reexamine the evidence or bring other charges — unless new evidence surfaces, “or something that was brought to our attention.”

Following is a Q&A from the interview with Wilkerson, which has been edited for length and clarity. Bennett declined to speak with Kansas Reflector.

I imagine that your life has been a lot more interesting in the past couple of weeks and past year.

I’m not sure I’d call it exciting, you know? I’ve got to keep doing my regular job here, and then for some reason, I agreed to take on another task that I probably won’t do again. But I did it this time. Here we are.

Why did you take this case?

Well, I got involved early on. Somebody told me about what was going on down in Marion County. Mark and I talked that Saturday somehow, and then he got ahold of Joel Ensey. We had both been active on the state level, we’d both been members of the (Kansas County and District Attorneys Association). And so that’s kind of how it all started.

Do you think there’s any conflict of interest in having had those conversations with Ensey initially and then being the ones to take over the investigation?

I don’t think so. It’s mentioned in the report, and it was so minimal.

Are there things that you would hope that the public would learn or take away from reading this report?

We tried to do the best we could to condense a lot of information and just relay what we were able to glean from all the reports and all the witness statements and apply it to the law.

Are there things we as Kansas Reflector or just the media in general have gotten wrong or overlooked or haven’t included that you think are important?

No, not really. Obviously, we’ve got a charge pending, criminal matter, and we don’t want to say anything at this point that could taint that process. And there may be more information that will come out in that proceeding that will shed a little more light on it. That’s really about all I can say. I think there’ll be more information, or at least different information, will come out.

Are you talking about the Oct. 7 first appearance?

If there are evidentiary hearings in this case, then perhaps more information will come out. I’m being really vague, but I just I can’t disclose matters that are likely to come out in court that could in any way interfere or impede a trial.

I’m respectful of that process. One of the things that has occurred to me is that if there’s a diversion agreement or something along those lines, a plea that’s entered that resolves this quickly, it’s possible that that evidence wouldn’t necessarily be disclosed in a court hearing. Right?

(Eighteen-second pause.) You know, maybe. There are civil suits that are involved as well. The civil suits are going to shed light on this as much as the criminal case will.

Are you able to say whether there’s consideration for a diversion in this case?

We can’t talk about any of that at this point. It’s not that I’m withholding anything from you. We just haven’t had any discussion. So I can’t talk about that at all. I can’t comment on it.

I am curious if there was a message that you would hope that law enforcement would take away from the report that you produced?

I guess the message I would say for everybody is: Proceed with caution. You know, I better be careful. I better stay away from that for now. Kind of let the report speak for itself.

Would you say there’s a need for legislative reform regarding any of the laws that are referenced in that report?

I don’t want to comment on that at this time either.

Is that something you would anticipate, you know, having some thoughts on after this is all resolved?

Yes. And it’s not that I’m trying to withhold things. I’ll be a lot more open to discussions on this when these cases, and not just our case, but even I don’t want to impact any civil cases either with what I would say to the press. So when they’re all resolved, I would certainly be able to provide more insight, perhaps, ideas, suggestions, moving forward.

Is there any consideration for reexamining the evidence or recommending criminal charges, or is this a closed deal at this point?

If evidence continues to come in, I would never say never.

But it would have to be new evidence?

New evidence, or something that was brought to our attention.

Can you talk about how the charging information was presented in this case — the decision to do it through testimony and not an affidavit?

Statute allows us to do it either through a written statement or testimony.

I know that you’re allowed to do it, but you have a choice of how you were going to do it. And I’m curious why you chose this path.

Because the officer was from Colorado, and he had not been trained on Kansas. So that’s why we did it. The testimony that he gave is available just as an affidavit would be available to the press or the public.

But the exhibits with an affidavit would be made available to the public. And in this case they’re not. The court said the exhibit that you presented during the hearing was returned to you, and so the court doesn’t even have a copy of it to provide, according to the court clerk.

If it were something that were presented with an affidavit, it wouldn’t be either.

Typically, I’ve gotten that with an affidavit request.

We don’t always attach them to affidavits.

Would you have any objection to the court releasing that?

It’s not up to me. You know, I’m probably about done. There’s not a whole lot I can say, OK? I mean, I’m trying to be as upfront with you as I can and not get myself in a jam.

I’m interested in the transparency of this, in the public interest in the case, and I’m just wondering whether the person who actually has the information is going to present any hurdles to releasing it.

You mean the court?

I mean are you going to object to the public seeing these texts? Or is there any assurance that this is going to come out through hearings? I think there is an overwhelming public interest in knowing what the charge is based on?

I understand your question. It’s going to come out as evidence. I can’t talk about it until court. I mean, the rule is something that’s going to be admitted as evidence is what I’m prohibited from disclosing.

Do you have anything that you want to say or clarify or add here?

I said I really wouldn’t talk about this case because we have to be — there’s gonna be a lot of scrutiny on this case, from everybody. And I just don’t want to make a misstep and taint a case.

I appreciate giving me a call and having this conversation.

I’m not gonna say that I wasn’t a little nervous, but you know, it’s just kind of the times we’re living in right now. And I also understand what’s at stake, and I’m trying to be very mindful.

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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