Prosecutor ducks warrant questions
Staff writer
County Attorney Joel Ensey would not answer questions this week regarding his role in Aug. 11 raids on the Marion County Record, the home of its owners, and the home of Marion Vice Mayor Ruth Herbel.
Ensey claimed that answering questions would violate attorney rules because of “ongoing investigation and pending litigation.”
A combined press release Aug. 16 from the Kansas Bureau of Investigation and Ensey, which the newspaper had been told Ensey would bring to the office although he did not show up, said Ensey had reviewed probable cause affidavits for the search warrants Aug. 14, three days after the raid, and did not find sufficient cause to justify the raid.
Equipment seized from the newspaper, its owners, and the vice mayor was returned after his announcement and tested by the newspaper’s attorney to determine whether it had been tampered with.
One question is why Ensey did not review the affidavits filed by Marion police chief Gideon Cody until three days after the raid.
Ensey also was asked why he did not withdraw from the matter, given his obvious family connection to the owners of the Historic Elgin Hotel.
His brother, Jeremy Ensey, and sister-in-law, Tammy Ensey, own the hotel that houses a restaurant operated by Kari Newell, who accused the Record of violating her privacy when it confirmed on a public website that a document provided to the Record was genuine.
Kansas Supreme Court rule 918 dictates that if a conflict of interest casts serious doubt on the integrity of the process or impairs impartiality, a lawyer must withdraw from the dispute.
Ensey also would not answer a question about why the application was filed with the court three days after the raid.
No one in the court system would answer questions about why magistrate Laura Viar, twice convicted of driving under the influence, would sign off on the search warrant in the first place.
“It is inappropriate for the court to respond on a matter that could come before the court,” said Lisa Taylor, public information officer for the office of judicial administration.
According to former State Rep. John Barker, a retired magistrate judge of 25 years and still works part-time in that capacity, said a magistrate or judge who is offered the affidavit must find probable cause to believe that an item sought is on the premises before granting a search warrant.
Ensey said in the joint KBI/county attorney press release that he found insufficient cause for a search warrant to be granted when he reviewed the document after the search.
The affidavit must be filed with the court as soon as possible, Barker said.
If he was told it had been taken to another judge, he would contact that judge to find out why it had been rejected.
Told that Ensey would not speak about the probable cause affidavit, Barker was surprised.
“Normally he’s answerable to the people,” Barker said.