Looks Like The Judge Who OK’ed A Raid On A Small Town Paper Didn’t Read The Warrants Until AFTER She’d Signed Them

I am not going to rehash this entire debacle again, but suffice to say a small town police department in Kansas — led by (the now-resigned) police chief Gideon Cody raided the offices of the Marion County Record (along with the home of its co-owners, one of which was 98-year-old Joan Meyer, who died less than 48 hours after the raid of her home) to supposedly investigate a computer crime.

Journalists had (legally) obtained driving records of a local business owner. Chief Cody thought otherwise and appeared to be rather friendly with the business owner, who was seeking a liquor license but seemingly had a history of driving drunk. A whole bunch of bullshit began after the raid made national headlines, but TL;DR: there was no crime nor was there enough evidence of any suspected crime to justify an unambiguous assault on the First Amendment. (That Chief Cody was aware the paper was looking into his troubled past only makes things worse.)

As the fallout continues, everyone involved is seeking to exonerate themselves, ranging from the local prosecutor who claimed all of this happened behind his back (not true!) to the judge who handled the clearly deficient warrant applications, Laura Viar.

Caught in the fallout, Judge Viar was facing possible discipline for approving these search warrants. But she has managed to avoid being (at least professionally) tainted by here involvement. But her defense of her actions raises more questions than it answers, as Sherman Smith reports for the Kansas Reflector.

The magistrate who authorized last year’s police raid on the Marion County Record escaped discipline from a state panel by making claims that contradict statements in federal lawsuits about how the search warrants arrived in front of her and whether the police chief swore they were true before she signed them.

Magistrate Judge Laura Viar’s secret explanation, obtained by Kansas Reflector, adds a new layer of confusion and mystery to how law enforcement were able to carry out the search and seizure of journalists’ computers and cellphones without regard for state and federal laws that prohibit such police action. It also raises concerns about the low standards set for judges by the Kansas Commission on Judicial Conduct.

The Reflector’s reporting focuses on statements about who actually delivered the warrant requests to Judge Viar. County Attorney Joel Ensey has maintained he and his office were never involved. But emails obtained after this case blew up seem to say he sent one of his office managers to deliver them to the judge. On top of that, former police chief Gideon Cody says he emailed them to Ensey, who stated he printed them off without reading them.

That alone is a problem. A prosecutor should be reviewing warrants forwarded to them because that’s how you stop something like this from happening. This is dereliction of duty but I can see why some prosecutors might see it as something far more useful: plausible deniability. If you don’t read the affidavits, you can claim you weren’t aware your cop buddies were planning to start violating a whole bunch of rights.

According to Viar’s letter [PDF], she was approached by Judge Robson and an “unknown officer” with the warrant requests. Robson did not introduce this person to Judge Viar. Instead, the judge asked a couple of leading questions to the officer about the involvement of the KBI (Kansas Bureau of Investigation) and exited the room.

Judge Viar asked the “unknown” officer if the warrants were time-sensitive since she had other things to deal with. The officer (introduced as the “chief of police”) answered in the affirmative, claiming investigators were waiting for him at the sheriff’s office. Viar’s letter states affirmatively that “Chief Cody did appear before me,” which contradicts her earlier statement.

Right past this point is where I think it gets really sketchy. Never mind the conflicting narratives about who brought the warrants and who may have seen them before they ended up in Judge Viar’s hands. The real problem here is how Judge Viar handled the warrants.

This is from Judge Viar’s statement — the one she used to help escape being disciplined for botching this essential part of her job.

I began looking over the paperwork when I was told [the officer] was going to be called back because his signatures were not authorized. He returned and swore that the facts in the applications were true and correct and that it was his signature on each application. I then signed the applications.

Fantastic. That’s an essential part of the equation. But it’s only part of it. The really important part of this process had yet to be accomplished. But that didn’t stop Judge Viar from signing the applications.

Here’s the next part of this narrative, in the judge’s own words:

Very quickly after Chief Cody left the office I began to review the applications.

Do you see the problem here? The warrants had already been signed. It was only after the judge approved the warrants that she finally decided to read them. And while some people might look at the narrative in Judge Viar’s letter and come to conclusion she read the affidavits prior to the officer’s return for the swearing and signing, they’re only lying to themselves about what happened here.

Why do we know that? Because Judge Viar can’t even definitively state whether or not the reading of the affidavits occurred prior to the officer’s return to her office. And that’s in the statement she made to defend herself against accusations she mishandled these warrants.

I do not recall if he returned immediately, as [sic], or after I had reviewed the warrants.

That’s the kind of fact that needs to be remembered. Chances are that if you can’t remember whether or not officers are still in your office while you read their affidavits, it’s because they’ve usually already exited with signed warrants in hand. At no point does Judge Viar state that she asked the officer (presumably Chief Cody) any questions about the applications. The only statements she makes in terms of verification was asking him to verify his signature and swear that the statements he made are true and correct.

But that’s the most important part of reviewing warrant applications: the review. Given the narrative provided by the judge herself, it appears that the standard operating procedure is to approve first and review later. And if Cody’s signature had already been notarized (which might have happened if the prosecutor had bothered to review the warrants before sending them to a judge), it’s not unreasonable to assume Judge Viar would never have bothered to read the underlying affidavits.

While I realize that 95% of law enforcement work is the same thing over and over, each warrant is limited time/place permission slip to violate the Constitution. For that reason alone, every warrant should be scrutinized prior to signature and the presenting officer should be there to answer any questions raised by their application. If more judges would take this part of the process seriously, we’d see a pretty steep decline in civil suits, suppression motions, and challenges raised by third-parties hosting other people’s information and communications. Just do your job as though your own rights depend on it. Because they do.