Inquiry into Marion raid has been hopelessly compromised. Kansans deserve an independent review. • Kansas Reflector

We will not see justice in the law enforcement raid on the Marion County Record newspaper until officials take an entirely different approach.

Until now, the investigation into abuse of power by local officials has been overseen by Marion County Attorney Joel Ensey’s handpicked special prosecutors and the Kansas Bureau of Investigation, with an assist from its Colorado compatriots. All have shown themselves unlikely or unwilling to serve justice. The prosecutors’ report offers a how-to manual for abusing journalists. The KBI, as shown by First Amendment attorney Max Kautsch’s columns last month, has long obfuscated the details of high-profile cases and covered for guilty cops.

We need to start over.

And that begins by having a truly independent counsel to review all of the investigative files related to the raid, collected by both the KBI and Colorado Bureau of Investigation in its follow-up work.

That independent counsel should be a retired judge or lawyer of unimpeachable credentials, someone respected by law enforcement, prosecutors, defense attorneys and reporters alike. This person should have a clear record of leveling with the public and explaining why charges are or are not brought in cases.

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

I suggest this approach as a compromise.

In his columns, Kautsch called for the release of raw investigative files from the KBI and CBI. The more public information the better, but law enforcement officials have denied open-records requests from Kansas Reflector editor in chief Sherman Smith. On the other hand, special prosecutor Barry Wilkerson told Smith he doesn’t foresee any new charges in the case (beyond the token slap on the wrist administered to former police chief Gideon Cody).

The least Kansas officials could do is allow someone else to take a hard look at what happened in Marion and why.

Special prosecutors’ history

You may wonder why I’m so quickly discarding the work of Wilkerson and his fellow special prosecutor, Marc Bennett.

Unfortunately, both men are hardly objective referees. The circumstances surrounding their appointment and earlier public testimony about open records raise questions that, to my mind, invalidates their report. I don’t mean to cast aspersions on the two men personally, or their work in Riley and Sedgewick counties. In this specific situation, however, they were flawed picks.

As Smith reported last month, Bennett offered Ensey advice in the immediate aftermath of the raid (Wilkerson pitched in a couple of days later). Bennett told the county attorney that search warrants in the case “will not sustain appellate review” and “to return the material seized to the owners in an expedited manner.”

Ensey then selected Bennett and Wilkerson as the special prosecutors. Surely, in the entire state of Kansas, he could have found legal minds without prior involvement in the case.

But that’s just the beginning. Wilkerson happens to have made extensive public comment about the relationship between news reporters and law enforcement. A decade ago, he testified against a House bill improving law enforcement transparency and accountability. The Kansas Press Association explained more here.

In written testimony, Wilkerson offered his take as president of the Kansas County and District Attorneys Association. He didn’t just argue against the bill. He instead appeared to criticize the very concept of crime reporting.

“I have never met the victim of a violent crime who wanted to be on the front page, or the families of murder victims who want to be today’s top story,” he said. “They have been victimized already and they do not want their pain and agony paraded publicly and their dignity invaded while they read or hear from others who have read gruesome details of a murder or sexual assault. It is an unspeakable gut wrenching experience, not a headline.

“The Kansas Legislature is here to protect its citizens not to help sell sensationalized news accounts.”

I don’t know which is more disgraceful. That Wilkerson hid his obvious contempt for the free speech rights of the press behind a shield of crime victims or that he believes reporters relish the despair of others. For one thing, there is no shortage of such victims who want to tell their stories in a public forum, and as loudly as possible. For the other, I’ve watched reporters throughout my two-decade career  grapple with the toll of reporting on inhumanity.

Members of the news media understand the seriousness of the issues, which is why we cover them. We aren’t paid Wilkerson’s county attorney salary ($192,723 for 2023) to do so, either.

A version of the bill ultimately made it into law in 2014. In an interview with Smith, the attorney suggested that he was representing the group’s position, “but we ended up working out a compromise on all this … and we were able to get something done, the bill that was eventually passed.”

He added that he supported the current law.

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

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

Keeping up the pressure

In the month since Wilkerson and Bennett’s report dropped, Smith and I have spoken to and heard from Kansas lawyers and law enforcement. Some have made their disagreement with its conclusions public. Others have taken a quieter approach — for now.

What I can say is this: The report does not suffice. It falls short in only charging a single person for their conduct after the fact. It falls short for not making a more forceful case about freedom of the press and the importance of journalists being able to do their jobs unimpeded. Most critically, it falls short in calling precisely no one to account for conducting an illegal raid. At a certain point, it moves beyond excusing bad conduct to laying the groundwork for others to harass the press in the future.

Someone else must take the reins, and as soon 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 either come at the local level, from state law enforcement agencies, or even Gov. Laura Kelly. He will address possible mechanisms for such an appointment in an upcoming column.

The point is to get a well-respected person selected and starting work sooner rather than later.

The stench of law enforcement abuse in the Marion County Record case has not gone away. It will not go away. It will continue to waft throughout this state until someone in our government stands up and insists on accountability from those who would strip First Amendment rights from their fellow citizens. Record editor Eric Meyer saw support surge into his newsroom from across the nation in the raid’s aftermath. But that’s not enough, and it was never going to be enough. Outrage without consequence eventually evaporates.

As I wrote last year, within a week of the original raid, we need accountability.

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

Clay Wirestone is Kansas Reflector opinion editor. Through its opinion section, Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.