KANSAS CITY, Mo. — A professor and former judge who spent 27 years on the bench referred to the affidavits used to raid a newsroom and two homes earlier this month as "insufficient" and "weak."
It's not just the "weak" evidence provided by Marion Police chief Gideon Cody that Steve Leben, Professor of Law at University of Missouri-Kansas City has an issue with.
"There is at least a suggestion that there was an ongoing dispute between the paper and the police chief," Leben said. "The police chief is the one getting the warrant and doesn't mention the dispute. That raises a concern."
According to Eric Meyer, owner of Marion County Record, Cody was aware the newspaper was investigating him about the time he spent as a captain at Kansas City, Missouri, Police Department.
Bernie Rhodes, Meyer's attorney, said Cody tried to silence the paper before, saying, "The chief's only response was to threaten to have his lawyer sue the paper."
Leben said Cody would need to inform Marion County Magistrate Judge Laura Viar of any conflicts that may need further evaluation before issuing a search warrant.
"Normally, with a search warrant, you want anything that might effect the reasonableness of the warrant to be disclosed," Leben said.
Cody's claim of identity theft
According to affidavits first reported Saturday night by the KSHB 41 I-Team, Cody made two allegations against the newspaper and Ruth Herbel, vice mayor of Marion.
The first claim is that a reporter at Marion County Record committed identity theft when searching for information on the state's website about a restaurant owner's driving record.
But, aside from accusing the reporter of committing identity theft, Cody doesn't explain why he thinks this crime was committed.
"There was no information in the affidavit to show identity theft had occurred," Leben said.
Under Kansas law, in order to commit the crime of identity theft, a person would need to show intent to defraud or an intent cause a person to economic or bodily harm.
"There was no allegation that anybody at the paper got some economic or other benefit from supposedly stealing the identity of someone nor was there any claim that they acted to harm the alleged victim," Leben said.
Cody's claim of Unlawful acts concerning computers
Cody's investigation is centered around the driving record of a local restaurant owner.
Marion County Record received a tip about the restaurant owner's driving history that it used to look up the restaurant owner's information on a state website.
The reporter said she used her own information to find what she was looking for.
Cody claimed in the affidavit, "Downloading the document involved either impersonating the victim or lying about the reasons why the record was being sought."
Leben said Cody's argument is weak.
"The affidavit makes clear that the newspaper was involved in reporter activities in what they were doing," Leben said. "This is a press activity and there are rights involved.
Warrant doesn't justify raids
Once the Record reporter verified the tip the newsroom received was true, Meyer said he's the one who contacted police, due to concerns as to how the tipster got the information.
Meyer said he never heard back from chief Cody after sending him an email with the details.
Cody confirms in the affidavit Meyer is the one who brought this to his attention via email.
Leben said the first step would've been for police to contact Meyer, considering he's the one who took the concern to police.
"There's no reason to believe here that you couldn't use a subpoena rather than an intrusive invasion and taking all the computers of a local newspaper," Leben said.
Ruth Herbel, vice mayor of Marion, also had her home searched and items seized.
Cody's claim against Herbel are even less clear.
Leben said it appears Cody claims Herbel committed a crime by sharing the same tip that was given to the paper with a city official.
In the affidavit, Cody write Herbel did not want to issue a liquor license to the restaurant owner based on her driving history.
Cody doesn't write specifically how a crime was committed.
New video released to the I-Team Monday, shows what happened inside the home of Joan Meyer, co-publisher of the paper, who lived with Eric Meyer.
Joan can be heard yelling at police, "This is my home!"
The 98-year-old nudges police with her walker and asks one police officer, "Didn't your mother love you?"
Joan Meyer died the next day.
Her funeral was held Saturday.
Leben: Search warrant should not have been approved
Leben said he would not have approved the warrants due to a lack of evidence and an overly broad request to seize multiple items.
"When you look at the fact that it screamed First Amendment and the supportive information was very light, it seems highly disappointing that they went in this direction," Leben said. "I would not think this search warrant should've been approved."
Leben said searching newsrooms requires a higher standard due to a Kansas reporter's shield law and the federal shield.
Missteps from the judge
Leben said the raids could've been prevented if the Judge Viar had asked more questions.
"They were acting as journalists and you need to examine that much more careful than was done in the affidavit," Leben said.
According to Leben, both Cody and the judge should've been aware there's a higher threshold for searching newsrooms.
"That's a fairly simple thing that has been seemingly overlooked in their work on this case," Leben said.
A lack of evidence provided in the affidavits does raise questions about why the warrant was sought, according to Leben.
"I would want to know more about both the motive of the affidavit and also about the journalists rights since both state and federal law provide restrictions on the use of warrants with respect to journalists."
Leben said when he was a trial judge, he would look up the elements of the offense that was at issue to make sure the warrant reflected the evidence.
"Had that been done here, the judge would've seen the evidence did not support identity theft at all—and would've also in my opinion said, I think there's some I's that haven't been dotted and some T's that haven't been crossed to show a computer crime."
As far as disciplinary action, Leben said it wouldn't be likely a judge would face any consequences for making a mistake.
"I don't think any single mistake is something that disqualifies a judge," Leben said. Although, you could have something if there was an ill motive involved."
The KSHB 41 I-Team reached out to Judge Viar for comment. Her office responded saying she can't speak about one of her cases.
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