Last week, federal prosecutors from the offices of U.S. Attorney Paul Coggins reversed their ever-shifting position on the heavily guarded Peavy Tapes.
Earlier this year, those same prosecutors had agreed that Dan Carver Peavy, a former Dallas Independent School District trustee, could keep a copy of his tape-recorded conversations with his lawyers so they could pursue civil litigation on his behalf. A neighbor had illegally intercepted these infamous conversations off Peavy's cordless phone, and they were used as evidence by the government in its unsuccessful bribery prosecution of Peavy.
On November 14, government lawyers told Magistrate Jeff Kaplan that Peavy, whose conversations were laced liberally with racial epithets, must return those tapes to the court.
"These should have all been returned to the government," assistant U.S. attorney Lynn Hastings argued, although she conceded that the government had not previously tried to collect the tapes. "If we had anticipated what is going on now, we would have tried to get them back."
This certainly isn't the first time that the Peavy Tapes--which include some 180 conversations with 35 different people whose voices have been positively identified--have caused a controversy. The tapes have haunted the garrulous Peavy, a former teacher and opera singer, as well as a host of others, including former school board president Sandy Kress. Even U.S. Attorney Paul Coggins has been affected by the tapes. Although his friendship with Kress, a former law partner, has raised questions about his impartiality, Coggins insists he has never interceded on Kress' behalf.
It all started as a feud between neighbors. From December 1994 to October 1995, William Harman Jr., who was involved in a long-running dispute with Peavy, taped his cordless conversations and committed a crime in the process. Harman pleaded guilty in August 1996 to unlawfully intercepting one cellular phone call and paid a $5,000 fine.
Although Harman had plea-bargained his charges down to an infraction--an offense less serious than a misdemeanor--the Federal Wiretap Act of 1994 makes it a possible felony to intentionally disclose or disseminate the contents of illegally intercepted wireless phone conversations. The litigation surrounding the Peavy Tapes represents some of the first instances nationwide in which this law has been tested.
No individuals have ever been publicly identified as disseminating the tape, but a brief portion of the taped conversations was sent to select school board members. This was subsequently played at a school board meeting and Peavy was heard making not only racist remarks, but sexist and anti-gay comments as well. Shortly thereafter, he resigned from the school board.
FBI agents soon had the opportunity to listen to the tapes, which they used to help build a bribery case against Peavy. Prosecutors would later charge that insurance agent Eugene Oliver had given Peavy $459,000 in payoffs to steer school district business in his direction.
Last November, however, a federal jury acquitted both Peavy and Oliver of all 42 counts against them. The prosecutors who tried that case never played the Peavy Tapes in the courtroom.
Since his acquittal, Peavy has tried to use the existence of the tapes to his advantage. He sued WFAA Channel 8, the station's reporter Robert Riggs, and neighbor Harman, seeking roughly $100 million in damages for the alleged invasion of his privacy. Peavy contends Harman gave the tapes to Riggs, who used copies as the basis for a July 1995 news expose about Peavy's alleged wrongdoing with DISD insurance contracts. The story aired before federal indictments were returned against him; Harman provided the station with copies of the tapes, according to Peavy's lawyer, as early as December 1994.
But WFAA and Riggs insist that their broadcasts were not based on the tapes but rather on independently gathered material. Riggs has testified that once he learned the tapes had been illegally intercepted, he turned over his copies to his lawyers.
(Peavy also sued the Dallas Observer, which printed a transcript of the tapes played at the school board meeting. Peavy alleged the newspaper violated his privacy, but a federal judge dismissed the case.)
Peavy contends that the tapes are the source of all of his legal troubles, including his indictments. "But for the illegal interception and taping," Peavy's lawyer Michael Quilling wrote to the government prosecutors in a letter seeking more sealed documents related to the recordings, "there would have been no investigation by Robert Riggs; no Channel 8 broadcast; no investigation by the FBI; and no charges levied and/or trial conducted."
A federal judge gave Peavy permission to have his lawyers keep a copy of the tapes. WFAA's lawyers also possess some of the recordings--the ones that Riggs had received from Harman. As Peavy and WFAA began the discovery process in their civil litigation, the tapes have been played at depositions, so more individuals are learning who said what and to whom.
On November 14, federal prosecutors asked Magistrate Kaplan to order Peavy and his civil defendants to return the tapes to his court and no longer disclose the contents of the conversations "for any purpose." At the hearing, WFAA lawyers reacted negatively to the government's sudden change in position. "I have some strong objections," said WFAA lawyer Bill Sims, "to the government coming in here having caused the problem in allowing Mr. Peavy to keep the tapes."
In January 1997, prosecutors themselves asked to have the tapes passed on for further review. In a development first reported by the Observer, U.S. Attorney Coggins asked the judge in Peavy's criminal case to allow his office to forward the tapes to the Civil Rights Division of the U.S. Justice Department.
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"There has been a great deal of speculation as to what these tapes contain and whether they contain violations of civil rights statues," said assistant U.S. attorney Phillip Umphres at the time. "We are saying that the public confidence would be better served if someone with fresh eyes--and who doesn't have a history with the parties--made the decision as to whether there were violations."
The Observer reported that four individuals who had listened to the tapes had heard the voice of former school board president Sandy Kress. The tapes, according to the allegations by the four individuals, captured conversations between Peavy and Kress discussing ways to limit the influence of black trustees on the board. During the pre-trial stage of Peavy's criminal trial, Kress had intervened--secretly--seeking to suppress the tapes as evidence.
At the hearing last week, a WFAA lawyer made reference to the Kress portion of the tapes. "There was stuff on these tapes," Sims, a partner at Vinson & Elkins, told the magistrate, "that is explosive, and it would be a national news story. It was never even mentioned in any of the broadcasts."
Kaplan refused to buy the government's argument, and as a result, the civil litigants can still use the tapes. But if the government decides to renew its objections, it could fuel further speculation that Coggins is taking steps to protect Kress.