By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
Finlan's suit contends that district officials tried to retaliate against himself and Venable because the two have litigated so aggressively against the district. Finlan wants the tapes to see if anything on them bolsters his case.
In a brief filed last week supporting his request for the subpoena, Finlan states that Peavy offered to give him the tapes, but suggested that Finlan first check with Peavy's lawyer. But Tom Mills, Peavy's lawyer, has subsequently written to U.S. District Judge Joe Kendall, who is presiding over Finlan's lawsuit, stating that his client is unwilling to release the tapes. Mills told the Observer in a telephone interview that Peavy says he has not engaged in substantive conversations with Finlan about the tapes' contents.
Later this week, Mills says, Peavy will file an affidavit saying he did not attribute the "not see[ing] more than one black face" comment to Kress.
Finlan, however, says he talked with Peavy three times about the tapes. He speculates that Peavy, whose public stock has fallen with the disclosures of racial epithets and the bribery trial, has two possible motives: to redress his past discriminatory ways or acquire some company in his misery.
"Dan Peavy would like to set the world straight, or he would like to bring everybody else down with him," Finlan says. "Take your pick and consider the source."
It's true that it serves Peavy's own interests to take the position publicly that he doesn't want the tapes aired, even if privately he views the matter differently. The former school board member has sued the Observer and WFAA for allegedly violating wiretap statutes by using the illegally intercepted tapes. (The Observer obtained the transcript of one portion of the tapes through an open records request to the school district.)
When asked in a telephone interview about Finlan's court document, Peavy insisted, "I wouldn't discuss the tapes." But moments later, in the same interview, Peavy did answer one question about the recordings.
"Everybody in town knows that Sandy Kress is on the tapes," Peavy said. The Observer's four sources also confirmed that Kress is on some of the tape recordings.
Sandy Kress, for his part, steadfastly refuses to confirm that he appears on the tapes. All the individuals who appeared on the illegally intercepted conversations, including Kress, received transcripts from the FBI of the conversations in which they were directly involved.
Since then, the former school board president has expended significant effort to keep the tapes under wraps.
"I will not discuss any knowledge I have of the tapes, " Kress told the Observer. The former school board president, a partner at the downtown establishment law firm of Akin, Gump, Strauss, Hauer & Feld, agreed to answer questions for this story in a telephone interview.
One question surrounding Kress is why he intervened anonymously in Peavy's criminal case. Before the jury started hearing the Peavy bribery allegations, an unnamed person--whose identity was kept sealed by the court--stepped in and asked U.S. District Judge Jorge Solis not to allow the tapes to be played at the trial.
Three attorneys connected to the criminal case have confirmed for the Observer that Kress was the mystery intervenor. (WFAA's Robert Riggs and D magazine freelancer Rebecca Sherman have also reported that Kress was the intervenor.)
Partners from Kress' downtown law firm represented the anonymous intervenor.
Kress, however, will not say. "The intervenor has chosen not to disclose his identity," he says. "The people who were taped were taped illegally. They were victimized. I can certainly appreciate the desire not to be further victimized."
In the telephone interview, the former school board president also displayed a certain disdain for those who are discussing the tapes' contents. "I can't tell you about what every single person who happened to snoop in on any conversation I had would think I was saying," he says.
The court filing by Finlan is the only public record that refers to specific language--the quote about "not see[ing] more than one black face"--that Kress purportedly used in his talks with Peavy. But the Observer's four sources all recall some version of that sentiment being expressed on the tapes.
Kress, however, is adamant about the quote cited in Finlan's filing. "I have absolutely no recollection of making that statement. I think it's a false statement. The hard part of this is that I don't want to get close to violating the law. That is the reason you've got me more reticent," Kress says.
But Kress contends that any comments he might have made should be viewed in context, given the racial divisions that dominated the school board's consideration of establishing the committees.
"The politics at the time were about the blacks wanting committees," he says. "I have no doubt that there were discussions saying that the blacks wanted to create these committees. I don't think there was much that was said privately that didn't reflect what was said publicly. That was the facts. The three black board members had taken that position. If three white members had taken the position, it would have aroused the same concern...I cannot remember all my private conversations. But there is no secret to the fact that the ones who wanted to return [to the committee system] were black."