Judge who signed off on raid of Kansas newspaper is facing a complaint about the decision

News@lemmy.world – 512 points – 10 months ago

Judge who signed off on raid of Kansas newspaper is facing a complaint about the decision | CNN

The judge who signed off on a search warrant authorizing the raid of a newspaper office in Marion, Kansas, is facing a complaint about her decision and has been asked by a judicial body to respond, records shared with CNN by the complainant show.

She should have been removed immediately. Perfect example of everything wrong with the American justice system

in the good ol' days it would have been by an angry mob with pitchforks and hot tar.. for authorizing the murder of an old woman by the cops..

We are civilized now boy... Fuck ur rights

Don't get violent now. Violence never solved anything.

---the most violent people you know

didn't get your meds today i guess

Weak reading skillz

The social contract is unraveling.

We'll get back to those days soon enough.

No it wouldn't, quit your bullshit

People in the past have stood up to the cops for much less. They would stand up to them evicting people from their houses and all kinds of stuff. Now they literally get away with murder with almost nothing being done to them.

The justice system generally allows everyone a chance to defend themselves. People aren't removed immediately for the same reason they aren't executed immediately.

I'm talking about firing. Not imprisonment. And yes, if you fuck up big time, it's completely fine to be fired on the spot. She issued a search warrant for a journalist, in complete violation of State and Federal law.

Her contract almost certainly requires due process before she is terminated under these circumstances.

And while not all workers in the US get that protection, it would be better if they did.

Kansas is an at will state. They can fire her because Tuesday is a day of the week.

At will is simply the default, so it only applies to workers without an employment contract.

She is a government official, and most certainly has a contract that specifies termination procedures.

Keep in mind that at will cuts both ways, it allows workers to quit at any time without notice. The government really, really doesn't want judges to peace out in the middle of a trial. So the contract provides penalties for both sides if termination procedures aren't followed.

I'm sorry but this is really funny. Her "contract" is the state constitution.

Other judges shall be subject to retirement for incapacity, and to discipline, suspension and removal for cause by the supreme court after appropriate hearing.

https://kslib.info/829/Article-3-Judicial

Whatever her contract specifies has to be consistent with the constitution, but her contract covers a lot more than that. It's not like she can look through the constitution to find her PTO policy.

Elected offical's compensation packages are codified, not contracted. This is a really bizarre rabbit hole you've went down.

§ 13: Compensation of justices and judges; certain limitation. The justices of the supreme court and judges of the district courts shall receive for their services such compensation as may be provided by law, which shall not be diminished during their terms of office, unless by general law applicable to all salaried officers of the state. Such justices or judges shall receive no fees or perquisites nor hold any other office of profit or trust under the authority of the state, or the United States except as may be provided by law, or practice law during their continuance in office.

The constitution and state law must be in keeping with any employment contract. That doesn't mean there is no employment contract.

Without an employment contract, there is no penalty if an employee suddenly decides to quit. If you are at will (no contract), giving notice to your employer is merely a courtesy.

The government does not want judges to suddenly quit in the middle of a trial, for the same reason that hospitals don't want doctors to quit in the middle of a patient appointment. Those kinds of employees need contracts.

Among other things, the contract specifies termination procedures. This may include a requirement to give notice and also limit the opportunity for summary firing.

An example of an employment contract for a judge can be found here.

after appropriate hearing.

It may not be a contract persay, but it does seem to support the idea that some amount of due process is required. I'd agree that there should be some option to more rapidly suspend a judge, but the constitution you quote says she gets a hearing before dismissal.

I wasn't really arguing that they couldn't dismiss them, just that the dismissal of an elected official being mediated by employment law is... an interesting approach.

This judge is not an elected official.

She was appointed but has to be voted for every 4 years.

No, she doesn't. She is a magistrate judge, and that's an appointed position.

What state and federal laws? Not trolling, genuinely have been searching and asking for an explanation. The probable cause seems clear from having read the warrant. I think the paper owner even admitted it's employee broke the records law.

President and law is to issue a subpoena. Basically ask instead of demand. It's to insure newspapers first amendment rights.

Based on your dodgy command of English I'm going to give your statements on criminal procedure very little weight.

Okay

Sorry friend, but they're right, you're wrong and to dismiss them over a spelling error is arrogant and ignorant. The warrant was for someone at the paper allegedly illegally accessing someone's driving record (1). Kansas has a law that protects driver's records, but it has a carve out for journalists with a legitimate need to access that info (2). Even if that legitimate need doesn't exist, this is a civil cause of action and not a criminal proceeding (3), so a subpoena from the aggrieved party would be appropriate and a warrant for the police to raid both the office and a journalist's home is a massive overstep, obviously intended to punish someone before they've even been accused of a crime. The warrant has since been withdrawn by the county attorney, who directed that all seized materials be returned and all copies of seized data be destroyed (4).

It's a federal law and there is no carve out for journalists. I linked the statute elsewhere.

I don't know what you're talking about. The warrant was part of a criminal investigation by police, not any civil lawsuit.

And you didn't even read your own links.

CONFIDENTIALITY AGREEMENT Under the Drivers' Privacy Protection Act of 1994, as amended (DPPA) (18 U.S.C. § 2721), personal information obtained by the Kansas Department of Revenue cannot be released unless the request for information falls within one of the exceptions within the Act. It is unlawful for personal information to be used for any purpose not permitted under the DPPA

The DPPA has no exception for journalists.

DPPA has no exception for journalists

is a very interesting way to interpret

In the analogous area of birth and death records, “reporters when investigating stories have a ‘legitimate research purpose’ … and are therefore to be allowed access to the vital records.” Campbell & Assoc. v. Sharma, No. 884-0076, at 22 St. Louis Cir. Ct. (Jan. 25, 1989).

Seems like I'm not the one who doesn't read my links

Wtf are you talking about? This case doesn't involve vital records (birth, death, marriage certificates).

Here's the statute buddy: https://www.law.cornell.edu/uscode/text/18/2721

Sections (b)(1)-(14) list the only rights of access.

What does a Missouri circuit court holding about vital records in 1989 have to do with anything? The case at issue was in Kansas, doesn't involve vital records (which are already open under FOIA).

You're obviously a poser.

and yet us commoners are frequently arrested and detained without cause. Yes, police can and do fuck up peoples' lives and make them sit in jail for days just to have charges dropped in many cases. You could whine and say it's rare, but once is too much vs the rules they're SUPPOSED to operate under.

Do not defend a two-faced "justice" system.

If some people are treated unjustly, the solution is not to treat everyone unjustly.

But thats the issue, there is no issue to fix the unjustness.

same reason they aren’t executed immediately.

They... are executed immediately.

See all the police killings of innocent people?

The judicial system allows those with wealth to game it so they don't have to play by the same rules as everyone else. Remember the affluenza kid who killed for people while driving recklessly? What about the other rich white male who literally raped a girl and got off because 'it could damage his future.'

Meanwhile, poor black folk get executed for no-knock search warrants when the cops go to the wrong place.

Police know to be more lenient with people that have status (wealth.) That's why we just got a recording with a pig laughing about a cop running over a pedestrian because she 'was of low value.'

If you don't notice how the justice system doesn't serve you, you're not paying attention.

I've been loosely following this story and I read the warrant applications. You seem certain this is outrageous. Could you explain why?

What was wrong with the warrant? The police seem to have had good probable cause. I'm a huge advocate for free press, but I've yet to hear a legal argument for what is so objectionable, here.

The probable cause statement wasn't even filed until after the warrant was issued and raid occurred.

https://thehill.com/media/4155087-publisher-newspaper-raided-police-says-timing-probable-cause-affidavit-suspicious/

“We finally were able to obtain the probable cause affidavit that was supposed to support the search warrant. It was filed three days after the searches were conducted, which is a little suspicious,” Meyer said in a CNN interview Wednesday.

Oh snap, I hadn't seen that detail reported yet.

Elsewhere I see:

The affidavits authorizing the searches and seizures at the paper and the publisher’s house were signed by Magistrate Judge Laura Viar, and while her signature was dated Aug. 11, the court did not receive the affidavits until Monday, Aug. 14 — three days after the search was conducted.

That's very suspect.

The top prosecutor, who ordered the seized materials be returned, said themselves that “insufficient evidence exists to establish a legally sufficient nexus between this alleged crime and the places searched and the items seized.” There was never probable cause, no evidence that this alleged illegal access ever happened. There never should have been a warrant in the first place.

On what grounds? What was wrong with the warrant? Did you read it? I realize it's all been tossed after the shit hit the fan.

Not sure what you're asking when you say "on what grounds".

The warrant was issued without any evidence supporting it, which I thought I made clear in my comment.

I did read it, it's linked within the article OP posted that we're replying too, or maybe it's a couple clicks away.

The fact that shit hit the fan seems like a red flag to me that things were wrong from the get go. Cops get away with misconduct every day, for it to make national news means they probably acted indefensibly inappropriately.

You're saying the warrant was issued without supporting evidence because the affidavit was filed after the warrant was served?

I don't know what the recording requirements in that court are. It may be that affidavits are submitted sealed and then not filed until after the warrant is served. That doesn't seem out of the scope of ordinary to me.

I'm not sure it's filing means the judge didn't see it.

I've yet to see reasonable cause. Mind sharing your own thought process so we can all know where the other is coming from?

Sure. The warrant application states that the newspaper employee accessed some private government record via online portal, and then shared that record with police and the public. In order to access the record, the newspaper employee must have either impersonated the person whom the record was about (it think it was about a town counselor if memory serves), or else falsely certify that the employee had a valid legal reason to access the information. It's the same certification I have make as a lawyer when doing a private background check, have to choose one of like fourteen legit reasons for requesting the info; comes from a federal privacy statute. The difference being I have a legit reason to certify when I'm doing a search, and I'm not accessing records directly from the government.

So either the newspaper employee committed identity thef or accessed a closed, government computer system under false pretenses, also known as hacking (unauthorized access).

Those were the two probable crimes set forth in the warrant. There is no journalist exception for crimes.

As I understand, the newspaper owner admitted that their employee falsely certified as to her right of access, but refused to give a statement or provide records.

The same officer who applied for the warrant is also the officer who initially received the document on behalf of the police. He recognized that it implicated the police chief in financial crimes, and referred it to internal affairs.

The only wrongdoing I could see is the appearance of conflict of interest, in that the department or prosecutor should have referred the matter to state law enforcement or law enforcement in a different county.

I don't like police raiding reporters in any sense, and that's what prompted me to read the warrant application, but after reading it I understand why the police, prosecutor, and judge all signed off on it. It seems legit.

or else falsely certify that the employee had a valid legal reason to access the information.

I think journalism would be a valid reason when discussing public corruption. IANAL, may be wrong.

There are 14 clearly defined rights of access. None of them apply to journalists.

I agree journalism is important and rooting out public corruption is a good cause. They should have requested the records by FOIA. Some records are exempt from FOIA and I have hunch these were such records. Congress passed the law setting out those fourteen reasons a person could have a valid legal right to the data, and fishing expeditions by well meaning journalists isn't one of them, for good reason!

Don't forget, the document was the proof of the corruption, before that, sounds like, it was allegation and conjecture motivated by a small town grudge.

I don't know, assume the affidavit is true and the actions of the newspaper employee were illegal, is the raid objectionable for any legal reason?

The whole thing stinks.

Thanks for the details, genuinely. I've not fired up PACER myself here, as much as me a private non-lawyer citizen could really follow along there.

Personally, I side with the newspaper morally in this matter. I'm much more of a "if raiding a newspaper over peacefully attempting to uncover corruption in local governments because they lied to do so is legal than the laws need to change" kinda guy.

I know that's pivoting. I also don't have any good ideas on how to improve the laws. Personally, I don't see any way of making a law that doesn't become either a target of or a tool for abuse of power, and this really feels a lot like people in power using the law to help a friend in a way that most citizens would not have access to.

I don't disagree.

They should have issued a subpoena, like every other case. Also the judge ordered the return of seized items from the search. Not a good sign of confidence in their legality.

A subpoena is a demand to appear issued by a lawyer. A witness has to be subpoenaed to something. You subpoena testimony, usually by deposition, to a hearing or to a grand jury. A subpoena duces tecum is a subpoena to show up and testify and bring documents, too.

Government subpoenas are usually in connection with civil enforcement. In the criminal context, they are to compel a witness to a grand jury or to testify at a pretrial deposition or at trial after the suspect as been charged, or in the case of secret proceedings, when a grand jury has convened.

Police use warrants not subpoenas.

Few days old but I didn't see this on search. It likely won't go anywhere but I found the dig on the judge's mental capacity to be hilarious.

The complaint requests the Kansas Commission on Judicial Conduct to review “Viar’s mental capacity in her decision to seemingly circumvent federal and state law” when she signed off on the search warrant for the newspaper office

I don't know about going nowhere. The higher courts generally get pretty grumpy about lower courts going mask-off like this.

Nothing for them to quash at this point since the county attorney withdrew the warrant. I don't really forsee her getting impeached or being declared without capacity and she has qualified immunity for civil damages. Hope she doesn't get reelected.

Edit: unless she's shown to have signed off without the affidavit. That could get her into trouble. I don't think they can prove that though.

If the warrant was withdrawn, doesn't that imply that the police who executed the withdrawn warrant were illegally searching and seizing?

The penalty for searching without a warrant is that evidence acquired is inadmissible. Sometimes. Sometimes not even that. Typically, that's fucking it. So it doesn't really matter that the search was illegal once the property is returned. Mostly, the penalties for the police are just political ones.

If there are some provable damages, the person who's civil rights were damaged might be able to sue, though with qualified immunity even that is a very, very uphill battle. SCOTUS rules against plaintiffs in cases like that routinely because the SCOTUS is very, very pro-police. They routinely rule that making things harder for the police & prosecutors is too high a price to pay for protecting civil rights. See, for example, Van Buren vs US or Arizona v. Gant.

No. It means the prosecutors won't be further pursuing the case. The warrant is legal process, returnable to the judge who signed it. If a party unilaterally wants to end a legal process it began, the procedure is to file a withdrawal.

> elect judges

This is the source of your problems.

I thought nobody could find the affidavit. Did that show up?

It finally did yeah. Seemed to have been filed a bit late. Chief of police wrote it himself. He's also the one who assaulted one of the reporters personally, turns out. He'll have no qualified immunity.

Wait, cops assaulting people without cause is not an official act? /s

It was filed with the application for the warrant. The judge wouldn't have granted the warrant without one.

“We finally were able to obtain the probable cause affidavit that was supposed to support the search warrant. It was filed three days after the searches were conducted, which is a little suspicious,” Meyer said in a CNN interview Wednesday.

https://thehill.com/media/4155087-publisher-newspaper-raided-police-says-timing-probable-cause-affidavit-suspicious/

Nope it's been public for a couple weeks.

Good. The whole point of judicial review is to not be a rubber stamp and to protect the rights of accused. They failed in both ways here.

Rubber stamping search warrants is how it's done though. If every case becomes high profile then things might change but I have no faith.

High profile stories like these at least send a warning to other judges that they take a risk when they blanket approve things without due diligence.

I’d hope this is a sign for things to change, but I don’t know how likely.

She should be facing impeachment ad disbarment.

She should be facing murder charges.

Doing the stupid, then lying about it when they get caught, seems to be the way big fish in small ponds operate.

The town's civic leadership is going to look vastly different a year from now.

What was the lie?

Maybe try reading about the case.

I've read more than you about it, I'm sure. But if you can't back up the claim....

That's funny because you said the exact opposite to me just one minute prior to leaving this comment.

https://lemmy.one/comment/2928014

The exact opposite?

I said I've read more about this than you.

I also said I had not read that singular detail.

Not very good at logic are ya?

Logic dictates that it's impossible for you to know what I have or haven't read about the case. You stated that I provided you with details about the case that you hadn't read yet, further disproving your unprovable claim.

You also asked what was a lie, and I provided you with one (of many) examples from the case.

Anything else?

If you didn't go to law school, you have not read more about this than me.

Not sure what lie you pointed out.

Just one?

The wheels of justice turn slowly. And then stall and die.