Investigation into Marion raid hopelessly jeopardized. Kansans deserve an independent investigation.

A stack of newspapers sits on a desk at the Marion County Record on July 25, 2024. (Grace Hills/Kansas Reflector)

We won’t see justice in the police raid on the Marion County Record newspaper until authorities take a completely different approach.

So far, the investigation into abuses of power by local officials has been led by Marion County Attorney Joel Ensey’s hand-picked prosecutors and the Kansas Bureau of Investigation, with assistance from his Colorado compatriots. All have shown themselves to be either unwilling or unwilling to serve justice. The prosecutors’ report offers a manual for abusing journalists. The KBI, as First Amendment lawyer Max Kautsch’s columns last month show, has long glossed over the details of high-profile cases and covered up guilty officers.

We have to start over.

Commentary on the Marion Attack

That begins with the appointment of a fully independent attorney to review all investigative files relating to the raid, which have been collected by both the KBI and the Colorado Bureau of Investigation as part of their follow-up work.

That independent counsel should be a retired judge or attorney with impeccable credentials, someone respected by law enforcement, prosecutors, defense attorneys, and reporters. This person should have a clear track record of dealing openly with the public and explaining why charges are or are not filed in cases.

After a careful review of all the evidence, this independent counsel should then write their own report, free from the influence of Kansas law enforcement officials, and share it with the public. If they believe that further charges should be filed against one or more parties in the case, they should be given the authority to do so.

I propose this approach as a compromise.

In his columns, Kautsch has called for the release of raw KBI and CBI investigative files. The more public information the better, but law enforcement officials have denied requests for the records from Kansas Reflector editor-in-chief Sherman Smith. On the other hand, special prosecutor Barry Wilkerson told Smith that he does not anticipate new charges in the case (other than the symbolic slap on the wrist given to former police chief Gideon Cody).

The least the authorities in Kansas can do is have someone else take a critical look at what happened in Marion and why.

History of Special Prosecutors

You may be wondering why I am so quick to dismiss the work of Wilkerson and his colleague, special counsel Marc Bennett.

Unfortunately, neither of these men are objective referees. The circumstances surrounding their appointments and prior public testimony about public documents raise questions that, in my opinion, invalidate their report. I do not wish to discredit the two men personally, or their work in Riley and Sedgewick counties. However, in this particular situation, they were flawed choices.

As Smith reported last month, Bennett offered Ensey counsel immediately after the raid (Wilkerson entered the case a few days later). Bennett told the district attorney that search warrants in the case “will not support an appeal” and “will return the seized materials to the owners in an expedited manner.”

Ensey then selected Bennett and Wilkerson as special prosecutors. He could have found lawyers throughout the state of Kansas with no prior involvement in the case.

But that’s just the beginning. Wilkerson, coincidentally, has done extensive public commentary on the relationship between news reporters and law enforcement. Ten years ago, he testified against a House bill to improve law enforcement transparency and accountability. The Kansas Press Association explained more here .

In written testimony, Wilkerson offered his opinion as president of the Kansas County and District Attorneys Association. He didn’t just argue against the bill. Instead, he seemed to criticize the concept of crime reporting.

“I’ve never met a victim of a violent crime who wanted to be on the front page, or the families of murder victims who want to be the top news story of the day,” he said. “They’ve already been victimized, and they don’t want their pain and anguish to be publicly displayed and their dignity to be violated as they read or hear from others who have read the horrific details of a murder or sexual assault. It’s an unspeakable, heartbreaking experience, not a headline.

“The Kansas Legislature is here to protect itS citizens should not help sell sensational news accounts.”

I don’t know what’s more shameful. That Wilkerson hid his apparent disdain for the freedom of the press behind a shield of crime victims or that he believes reporters revel in the desperation of others. First, there is no shortage of such victims willing to tell their stories in a public forum, and as loudly as possible. Second, I have watched reporters struggle with the toll of reporting on inhumanity in my 20-year career.

Members of the news media understand the seriousness of the issues, that’s why we report on them. We also don’t get paid the salary of Wilkerson’s county attorney ($192,723 for 2023) to do so.

A version of the bill eventually passed in 2014. In an interview with Smith, the attorney suggested that he represented the group’s position, “but ultimately we worked out a compromise on all of this … and we were able to get something done, the bill that ultimately passed.”

He added that he supports the current law.

I take Wilkerson at his word today, even though Katusch told me the proposal and the compromise were “remarkably similar.” But I also take Wilkerson at his word in 2014. That testimony makes him completely unfit to serve as a special prosecutor in a press freedom case. Period.

For the record, Bennett also testified against the House bill, albeit in more technical terms. Wilkerson spoke to Smith late last month, but Bennett declined to do so.

Keeping the pressure on

In the month since the Wilkerson-Bennett report came out, Smith and I have spoken with and listened to Kansas lawyers and law enforcement officials. Some have gone public with their disagreement with its findings. Others have taken a quieter approach — for now.

What I can say is this: the report is inadequate. It fails to indict just one person for his behavior after the fact. It fails to strengthen press freedom and the importance of journalists being able to do their work unhindered. Most importantly, it fails to hold precisely no one accountable for conducting an illegal raid. At some point, it goes beyond condoning bad behavior and laying the groundwork for others to harass the press in the future.

Someone else needs to take over the reins, and as quickly as possible.

I don’t have a specific method in mind for selecting the independent counsel. In my conversations with Kautsch, it appears that the appointment could happen at the local level, by state law enforcement agencies, or even by Gov. Laura Kelly. He will discuss possible mechanisms for such an appointment in an upcoming column.

The point is to get a respected person selected and started working as quickly as possible.

The stench of police abuse in the Marion County Record case has not gone away. It will not go away. It will continue to waft through this state until someone in our government stands up and demands accountability for those who would deprive their fellow citizens of their First Amendment rights. Record editor Eric Meyer saw support erupt in his newsroom across the country after the raid. But it is not enough, and it never will be. Outrage without consequences eventually evaporates.

As I wrote last year, we must account for this within a week of the original raid.

At this point, an independent advisor is the only way to get there.

Clay Wirestone is the Opinion Editor of Kansas Reflector. Through its Opinion section, Kansas Reflector amplifies the voices of those impacted by government policies or excluded from public debate. Find information here, including how to submit your own commentary.