Police in Kansas have returned cellphones, computers and other equipment to the Marion County Record, less than a week after a raid on the small-town newspaper was widely criticized as a likely violation of federal law.
In another development, news emerged that Magistrate Judge Laura Viar, who signed the search warrant allowing police to seize the equipment, was arrested at least twice for driving under the influence. Those 2012 arrests came months apart in two counties — and it's not clear how much information was shared between officials at the time, The Wichita Eagle reports. (See below for more on the allegations.)
The extraordinary Aug. 11 raid drew national and international headlines because it seemed to run counter to long-established press freedoms and guarantees. Such actions are nearly unheard of in the U.S.
"It's very rare because it's illegal," First Amendment attorney Lynn Oberlander told NPR. "It doesn't happen very often because most organizations understand that it's illegal."
Here's a quick recap of where things stand:
DUI records have been pivotal to the case in Marion
It was a confidential tip to the Record about the DUI history of Kari Newell, a local restaurant and catering company owner, that set incidents in motion. The paper says it confirmed Newell had lost her driver's license, using a public website.
But the Record opted not to publish the information, choosing instead to inform Marion County Sheriff Jeff Soyez and city police Chief Gideon Cody about the source's allegation that officers were aware a local resident couldn't legally drive but were ignoring issues with their license. The paper says it didn't use Newell's name.
Days later, Newell publicly accused the Record of feeding the information to a councilwoman, Ruth Herbel. The paper says the same source who made the initial allegation also sent the information to Herbel.
Police then raided the Kansas newspaper after obtaining a search warrant from Viar citing a criminal investigation into "identity theft," regarding Newell's records found online. Officers also seized devices at Herbel's home.
Newspaper staffers scrambled to cobble together enough equipment to produce its regular Wednesday edition.
Judge who signed warrant is under scrutiny
The judge was arrested twice in 2012 — once on Jan. 25 in Coffey County and again on Aug. 6 in Morris County. At the time, Viar's last name was Allen and she was working as the top prosecutor in Morris County.
In the first arrest, Viar "was charged and entered a diversion agreement — which was extended six months because she refused to get an alcohol and drug evaluation and stopped communicating with her lawyer," according to the Eagle.
She was arrested again months later, this time in her home county.
"Officials say she was driving Morris County Magistrate Judge Thomas Ball's vehicle, when she ran off the road and hit a shed near the Council Grove football field," TV station WIBW reported in 2012, adding that at the time, the prosecutor was on the Morris County Anti-Drug Task Force.
"She was charged with DUI, reckless driving and refusal to take a preliminary breathalyzer," the Emporia Gazette reported at the time.
Despite those issues, Viar was reelected as county prosecutor several times. In late 2022, she was chosen to fill a slot as a magistrate judge in the 8th Judicial District after the sitting judge retired.
Reporting on the 2012 charges this week, the Wichita Eagle said it was unclear how Viar's DUI cases were resolved or whether officials in either county were aware of her arrest in another jurisdiction.
Newspaper looked into police chief's background
Meyer said the Record looked into allegations of misconduct against Cody, who was sworn in on June 1 after retiring from the Kansas City Police Department, based on anonymous tips from several of his former colleagues.
Meyer said a Record reporter approached Cody seeking comment about the allegations and in response Cody threatened to sue the paper.
Cody declined to confirm whether he threatened to sue the paper or whether the raid was linked to the paper looking into his background.
Meyer said Cody "has reason to not like us," but said he didn't know if there was a connection between his paper's reporting and the raid.
The Kansas Bureau of Investigation took over the case
The state agency began leading the investigation into alleged identity theft on Monday. Just two days later, the KBI said it would "coordinate the prompt return of all seized items."
The equipment and devices were returned "without review or examination," the bureau said.
The Record says it reached a deal with investigators to turn the gear over to a forensic investigator to confirm whether the equipment had been reviewed or examined before it is put back into service.
Marion County Attorney Joel Ensley, who formally requested for the judge to release the newspaper's items, said in a written statement issued by the KBI that he made the decision after he "reviewed in detail" the warrant application on Monday that had led to last Friday's raid.
Ensley said he concluded that "insufficient evidence exists" to establish a link between the alleged crimes and the places that were searched and the equipment that was seized.
NPR's Danielle Kaye and David Folkenflik contributed to this report.
