By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
But Coggins insists his ties to Kress in no way influenced his decision to sit on the tapes for a year before attempting to refer them to the Civil Rights Division. Instead, Coggins says, he waited to act on Ewell's letter until after Peavy's criminal trial was concluded.
This past November, Peavy's trial did reach an end--not one that the U.S. attorney would have wished. In a verdict that took many by surprise, Peavy was acquitted of all charges. It was one of the highest-profile cases tried since Coggins took office, and Peavy's acquittal looked bad on the U.S. attorney's record. "It was a tough case to lose," admits Coggins.
The assistant U.S. attorney who tried the case, Phillip Umphres, says: "We didn't blow the case; the jury just didn't like the story we had to tell."
But given the defeat, the prosecutors' decision not to use the Peavy Tapes during trial has spurred some second-guessing.
In pre-trial hearings, prosecutors sought to preserve the right to play portions of the tapes. Prosecutors told the judge that the tapes contained conversations between Peavy and his co-defendant in the case, Eugene Oliver. Although the recordings contained no 'smoking pistol,' prosecutors argued, they could be relevant to the criminal case because Peavy allegedly discussed financial arrangements with Oliver. (Oliver was also acquitted of all charges in the bribery case.)
Defense attorneys argued that the tapes should be suppressed because they were illegally obtained. Judge Jorge Solis wouldn't go that far, and he ruled that prosecutors could use the tapes for impeachment purposes. But at the trial, prosecutors never played the tapes.
The concern, Umphres says, was that playing the tapes could cause reversible error. The use of surreptitiously obtained recordings is a relatively untested area of the law. Had he been convicted, Peavy could have asked an appeals court to overturn the verdict by arguing that the tapes were illegally obtained evidence. Given the verdict, the prosecutors' caution now seems moot.
Would the prosecutors have prevailed if they had played the tapes? Did Coggins somehow spare his friend Kress the embarrassment of airing the tapes in court, which would have garnered significant publicity?
Both Coggins and Umphres insist that shielding Kress was not their motivation. "I never talked to Sandy about the tapes until the case was over," Coggins says. "I never at any point influenced the trial lawyers. I am hugely proud of the team. They had to be the ones for a decision like that, to play the tapes or not play the tapes."
With the Peavy criminal trial over, Coggins still had the letter from Ewell--as well as questions from the Observer--about whether the tapes captured conversations involving potential civil rights violations.
In early January, Coggins says, he talked to the FBI agents who had reviewed the tapes and decided to refer the recordings to Washington. "I thought it was a good idea to get somebody with fresh eyes to look it," Coggins says.
Assistant U.S. Attorney Umphres is more matter-of-fact about the sticky problem presented for Coggins in dealing with his friend Kress. "Anything we did would be second-guessed," Umphres says. "If we tried to prosecute, they'd say we were vindictive because we lost Peavy. If we did nothing, we'd be accused of Coggins being friends with Sandy."
Before Umphres can instruct the FBI to forward the tapes to Washington, he has to get a release from Judge Solis, who presided in Peavy's criminal trial.
Kress, gone from office for more than a year now, expressed consternation when told by the Observer about the possible federal probe.
"I'm kind of startled at what you said," Kress said when reached by telephone at his home. "I don't think there was a pattern of exclusion. It surprises me that it rises to the level of any kind of need for further review."
Later in the conversation, Kress noted for good measure: "I don't recall in those discussions using the 'N' word. I don't think there is much that was said privately that didn't reflect what was said publicly. Look at what we did--you'll see the negotiations we made.''
Peavy is less startled by the possibility that the notorious tapes might become fodder for further investigation. After resigning in disgrace and enduring a bruising federal bribery trial, the former school board member hints that he won't mind if the contents of the tapes ultimately become public.
"I done been to that rodeo," Peavy says. "They can play all the rest of the tapes as far as I'm concerned. My tapes are out. It'll just be embarrassing for all the virgins out there, bless their little hearts.