Warrant for Kansas newspaper raid withdrawn by prosecutor for ‘insufficient evidence’

The prosecutor in Marion County has withdrawn the search warrant executed at a small-town Kansas newspaper that was raided Friday by police, the paper’s lawyer said Wednesday, which the Kansas Bureau of Investigation soon confirmed.

All electronic devices seized by police will be returned to the Marion County Record, said Bernie Rhodes, a Kansas City-based attorney for the Record who also represents The Star.

“We have stopped the hemorrhaging,” Rhodes told The Star. “But it does nothing about taking care of the damage that has already occurred from the violation of the First Amendment in the first place.”

Rhodes called the decision a step in the right direction and said it indicates a clear change since the Kansas Bureau of Investigation took over the case from local police earlier this week.

Rhodes’ forensic consultant was en route to retrieve the devices Wednesday. Any further attempt to gather information as part of the case, he said, will now be done “in compliance with” the federal laws.

The KBI said the investigation remains open, but that the probe will proceed “without review or examination of any” of the evidence seized Friday. The KBI said it will present its findings to the prosecutor once its investigation is completed.

In his own statement, Marion County Attorney Joel Ensey said he concluded that “insufficient evidence” existed to establish a “legally sufficient nexus between this alleged crime and the places searched and the items seized.”

[Kansas police and a small newspaper are at the center of a 1st Amendment fight after a newsroom raid]

Marion Police Chief Gideon Cody, appointed in May to lead the town’s force after 24 years with the Kansas City Police Department, has defended sending his five officers to seize journalists’ cellphones, computers and materials. Rhodes and media law experts have called the search illegal, however, and have said it violated the U.S. Constitution.

Officers appeared to be looking for evidence about how the paper obtained information that a local restaurateur, who applied for a liquor license, lost her driver’s license over a DUI in 2008. In addition to the Record’s newsroom, the police also executed search warrants at the home of publisher and co-owner Eric Meyer and the home of Ruth Herbel, a Marion city councilwoman.

Kansas Attorney General Kris Kobach, speaking to reporters Wednesday, said the “potential case” remains in Ensey’s hands.

A copy of the search warrant for the newsroom listed identity theft and “unlawful acts concerning computers” as the crimes the police chief told Magistrate Judge Laura Viar that Cody had probable cause to believe had been committed.

The newsroom warrant allowed officers and sheriff’s deputies to take correspondence pertaining to business owner Kari Newell, the local restaurateur, along with digital information or items that would establish the use of computers and networks “to participate in the identity theft” of Newell.

The family-owned newspaper, which prides itself on being a watchdog in the community about an hour north of Wichita, has said it did nothing wrong and was simply doing journalism.

The Record published its first edition since the raid on Wednesday in honor of Joan Meyer, the paper’s co-owner who died at age 98 a day after the searches. In her final hours, Meyer had called the raid “Hitler tactics” and had been deeply distressed by the search, her son Eric Meyer has said.

The raid was condemned globally by news organizations and free press advocates, who said executing a search warrant at a newsroom was “chilling.”

“You and your office should apologize to Mr. Meyer and his staff, the newspaper, and to your community for your egregious actions,” the Illinois Press Association, one of the many groups to weigh in, wrote to the police chief, calling on him to “own it, apologize, and resign.”