'It's all a matter of power.'
On a mid-February afternoon in 1995, the nine members of the Dallas Independent School District board were holding a work session, one of their regular informal gatherings to hash out the particulars of pending business.
Among other things that day, the board faced the question of establishing permanent committees--small groups of board members who would meet regularly to focus attention on specific troubles of the 142,000-student public school system, which is plagued by test scores ranking far below the national average.
Setting up committees might seem like an arcane question of bureaucratic structure. But for the three African-American board members, the proposal cut to the heart of the most vexing issue facing the district: the distribution of power.
The district was then, and remains, fractured along racial lines--its student body is virtually all black and Hispanic, but its governing board has always had a white majority. Black community leaders in Dallas have for years chafed at the perceived unwillingness of whites to share power.
Hollis Brashear, the African-American board vice president, was advocating committees as a way for minority board members to get some sort of grip on the levers of DISD governance. Increasing the voice of minority members would help balance the power of white board members, including then-board president Sandy Kress.
Kress, a corporate lawyer and former county Democratic Party chairman who had been elected two years earlier as a reformer, disliked the idea. He argued that committees would spawn too much micromanagement of the district's day-to-day affairs. DISD had abolished a similar committee system several years earlier, after the district found itself in trouble with the Texas Education Agency because board members meddled beyond their prescribed powers.
Brashear, an engineer who had been elected at the same time as Kress, and the two other black members were pressuring Kress, insisting that new committees were needed.
The black members thought they were getting closer to their goal that February day, when the topic of committees was due up at the work session.
But at the meeting, Brashear and others began to get suspicious.
A committee on committees--which Kress had reluctantly appointed to draw up proposals for a new system--was supposed to report to the full board that day. When the committee on committees met one week before, its four members had agreed on a seven-page plan calling for four committees concentrating on business, education, personnel, and community affairs. Kress would appoint the members. Part of the plan specified that the committees would meet on different days of the month, so that all board members would have the opportunity to drop in and monitor the proceedings.
But something had happened in the ensuing week. Suddenly, at the work session, board member Dan Peavy trotted out his own plan, under which the committees would all meet at the same time on the same day of each month.
Other board members regarded Peavy as perhaps Kress' biggest backer on the board, and like Kress, Peavy had initially opposed the committee system.
Suddenly, here was Peavy embracing the committee proposal, but suggesting it be done in a way that would effectively prevent board members from attending all committee meetings if they wished to do so.
Brashear knew something had happened, but he couldn't quite figure out what. "Mr. Peavy had a change following the [previous week's] meeting as it relates to the schedule, but he is [not] in favor of committees," Brashear told the board, according to minutes of the February meeting.
Rene Castilla, another board member at the time, also noticed something funny about Peavy's sudden change of plans. Castilla was one of the four committee on committees members who had cut the deal one week earlier. "Something had happened in the interim," Castilla recalls now. "Something had transpired."
The question of what "transpired" may now be referred to the U.S. Department of Justice for a possible criminal investigation into civil rights violations by Kress, Peavy, and the DISD board, the Dallas Observer has learned.
At the heart of the possible investigation are the notorious Peavy Tapes, surreptitious recordings made of telephone conversations involving Dan Peavy, board president Sandy Kress, and other school officials.
The tapes have already produced a firestorm in Dallas' political and media circles. Recorded by a neighbor of Peavy's who was involved in a dispute with the school board member, the tapes contain hours of conversations on myriad subjects ranging from board policy to Peavy's family business.
A snippet of one tape--which was mailed anonymously to school board members and read publicly at a board meeting--captured Peavy using salty language and racial slurs, and ultimately forced him to resign from the board.
Since the tapes' existence became known, political junkies and school board watchers have been gripped with speculation about what else they contain. Many expected the answers to be revealed when Peavy was tried late last year on federal bribery charges, but the tapes were never played in court. Peavy was acquitted of the charges.
The contents have remained secret amid questions about whether illegally intercepted conversations can be used by prosecutors or reported by journalists. (Similar questions arose recently involving House Speaker Newt Gingrich, after a Florida couple gave the House ethics committee a surreptitiously recorded tape of Gingrich discussing strategies to minimize the political fallout from his admitted ethics violations.)
Peavy's neighbor pleaded guilty to making the tapes illegally--by using a scanner to pick up Peavy's cordless telephone conversations--and paid a $5,000 fine.
Both Peavy and his wife have sued the neighbor over the illegal taping. Peavy is also suing the Observer for publishing a verbatim version of the tape transcript which was read at a September 28, 1995, school board meeting.
The Observer has not heard the tapes or had access to any other transcripts of the recordings.
But four individuals familiar with the contents of the tape recordings have told the Observer that, among other things, the tapes captured Kress and Peavy speaking at length about ways to limit the influence of black board members, specifically by controlling the committees Hollis Brashear and other black members so badly wanted.
One of the conversations between Kress and Peavy, according to the individuals(who did not want to be named), specifically involved hatching a plan to allow creation of the committees, but scheduling them to meet simultaneously. According to the same sources, Kress made comments on the tapes indicating that he wanted to prevent more than one black board member from being present at any committee meeting.
Paul Coggins, the U.S. attorney for the Northern District of Texas, says he will ask a federal judge to allow copies of the tapes to be forwarded to the Civil Rights Division of the U.S. Department of Justice for review.
"An allegation was made that the tapes evidenced an exclusion of certain people in the decision-making process [at DISD]," Coggins told the Observer. Those assertions, as well as his discussion with FBI agents who have reviewed the tapes, Coggins says, triggered his recent decision to forward the tapes to Washington.
Coggins declined to discuss what specific remarks on the tapes prompted his decision to refer the matter to the Civil Rights Division, which has the discretion of opening a formal investigation if it believes the tapes justify one.
Kress also declined to discuss the contents of the tapes.
But according to the accounts of the four individuals who spoke with the Observer, the tapes support a fear minority leaders have long held--that white school officials like Kress and Peavy held secret discussions on ways to limit minority influence, even as they publicly professed support for greater minority participation.
"It's unbelievable that stuff goes on in the 1990s," said one of the individuals with knowledge about the tapes, who asked to remain anonymous because of the questions surrounding use of the tapes.
"It's clear what they wanted to do," says another source familiar with the tapes.
The plans Kress and Peavy discussed during the tape-recorded conversations dovetail remarkably with records and minutes of school board meetings and discussions at the time.
A court document filed last week adds further support to the characterization of the tapes provided by the Observer's sources.
In the court filing, Richard Finlan, a local attorney and long-time litigant against DISD board members, characterized comments that Finlan says Peavy made to him about what is on the tapes.
Finlan claims Peavy told him this past December that the tapes "would show that Sandy Kress, in fact, was 'far worse' than Peavy 'had ever been' with regard to discrimination against African-Americans." In his filing, Finlan wrote: "In fact, Peavy shared many of Kress' comments and alleged that Kress had demanded that, regarding DISD committee appointments, he 'not see more than one black face' in any single committee meeting. Kress' goal, according to Peavy, was to purposely dilute the ability of African-American board members to influence DISD committees and isolate them politically." (The emphasis is included in Finlan's court brief.)
If four individuals had not corroborated them for the Observer, Finlan's publicly filed assertions against Kress might foster skepticism. Finlan and his alleged source, Peavy, certainly carry plenty of baggage.
Dan Peavy, a former opera singer whose tall frame supports his tremendous girth, has already suffered his own setbacks because of the tapes made by his neighbor.
In November, Peavy was acquitted of bribery charges by a jury in a Dallas federal court. WFAA-Channel 8 reporter Robert Riggs, who had obtained copies of the tapes from the neighbor, conducted an investigation and broadcast a series of stories in the summer of 1995 alleging that Peavy used his position on the school board to line his own pockets while negotiating insurance contracts for the district.
Prodded by the television news story, U.S. Attorney Paul Coggins' office launched an investigation which ultimately led to Peavy's indictment. During that investigation, the FBI obtained copies of the tape recordings.
But when Peavy's trial came about, prosecutors never played the tapes. Assistant U.S. Attorney Phillip Umphres says the government feared that playing illegally intercepted recordings could give an appeals court cause to reverse a guilty verdict.
It is not immediately apparent, therefore, why Peavy would share the contents of the tapes with Richard Finlan, who has a relentless passion for suing school board members.
Finlan asserts in court filings that Peavy discussed the contents of the tapes with him. The filings are part of a federal lawsuit Finlan filed last year seeking financial damages from DISD board members and their lawyers, alleging that they violated the civil rights of Finlan and his co-plaintiff, Don Venable.
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."
Kress insists, however, that he made no effort to keep proponents of the committee system--the African-Americans or "micromanagers," as Kress called them--separate from each other.
"The problem had nothing to do with excluding people, but [with] returning to a form of governance that had heaped scorn on the district," Kress says. But he adds there could have been an effort to try and make the committees tri-racial--Hispanic, black, and white--which would have separated the black members.
"In the middle of a hot debate, I do think it's helpful to see there were other concerns, even at the risk of being called a racist," Kress says.
Peavy confirms that he and Kress discussed ways "to avoid everybody attending all the [committee] meetings," but says race was not the reason.
"The blacks were attempting to reinstitute the committee structure as it had been," Peavy says. "Sandy was pretty vocal against it...It's all a matter of power. I understand the other side now."
Although the tapes remain secret, DISD documents also offer a record of what took place during the board's fight over the committees and the role of board president Kress.
A 46-year-old Dallas native, Barnett A. "Sandy" Kress would seem, from his family background, to be an unlikely candidate to wind up in the middle of a potential federal civil rights probe.
The boyish-faced Kress graduated from the University of California at Berkeley. His mother was a community activist who helped establish public health clinics, and his father raised funds to build a statue of Martin Luther King Jr. at the Dallas community center bearing the black civil rights leader's name.
When he was first elected to the DISD board in 1992, Kress had already acquired political credentials that seemed overly ambitious for the parochial post. In 1989, he had stepped down as chairman of the Dallas County Democratic Party to run for the congressional seat held by John Bryant, who had made plans to resign. But Bryant changed his mind, leaving Kress in the lurch. Kress then led a city-wide school reform effort before joining the DISD board.
Upon joining the panel, Kress planned to make big changes and rattle a few cages. In September 1993, the year after he started, Kress told the Dallas Morning News, "I think one of the great problems in modern-day politics is people prize consensus too much. Everybody wants things to go down smoothly. Everybody wants to be happy. We want these schools radically changed, and yet we want harmony."
In his 1994 bid for the board presidency--and when he sought the office again the next year--Kress was opposed by the African-American board members. To black school board members and city activists, Kress represented another in a long succession of white male school board presidents in a district where minorities had long ago dominated student enrollments. A black member most recently held the board presidency in 1988.
Despite the racial composition of the student body, a white majority has sat for years on the DISD board. Hispanic members have historically voted with their white counterparts in a group that has been called the Slam Dunk Gang. Over the years, many white school board members have received campaign contributions from the same crowd of wealthy white Dallas businessmen, including real estate developer Trammell Crow, oilman Ray Hunt or his employees, and Austin Industries Chairman and Chief Executive Officer William Solomon.
White politicians dominate the politics of the DISD school board, but white parents, as a group, shun its schools. The perception that a white man should not preside over a school district with a majority of black and Hispanic students dogged Kress and, more recently, his anointed successor as president, Bill Keever.
A general feeling of exclusion might not be the only Kress legacy that spills over onto Keever. Kress says he talks to his successor "periodically" about school board business.
But Keever told an Observer reporter last year that the two men converse frequently. "There is not a day that goes by in this city that I don't talk to Sandy Kress," Keever said.
If Kress did participate in efforts to limit the participation of African-American members--and still has Keever's ear--the outcries of minority leaders that have filled Dallas news lately will start to carry far greater weight. The school district, as a recipient of federal funds and a contractor of the federal government, is bound by the nation's civil rights laws, which bar discriminatory practices on the basis of race.
"It was one of the five most bitter votes the whole time I was on the board," Sandy Kress recalled last week, talking about the DISD board's struggle in late 1994 and early 1995 to form committees.
An extensive review of DISD documents, along with interviews with others who served on the DISD board at that time, shows that it was Kress who was largely responsible for making the process contentious and slow.
Kress says he resisted the committee concept at first because he believed it would create unequal access for board members. School board members with the most time available to attend committee meetings could end up with undue influence, Kress says. Kress conceded that two African-American members--Yvonne Ewell and Kathlyn Gilliam--happened to be the ones he feared would emerge with the most influence.
In theory, committee power would be limited to the members of each panel, Kress says, "but this is not the way Kathlyn and Yvonne operated."
Hollis Brashear, who kept notes on the progress of the committee-formation process, remembers meeting with Kress in late November 1994 and talking about the need for committees.
The board had indeed formed committees in the past. But Kress' immediate predecessor, Rene Castilla, once considered a leader of the Slam Dunk Gang, had abolished them in 1991. But by late 1994, even Castilla--still on the board but no longer president--had changed his mind and was supporting the three African-American board members. According to Brashear, Kress said in November that he was working on a plan.
But as far as Brashear could tell by a January 10, 1995, board work session, Kress still had not come up with any sort of committee plan.
Brashear decided to take the lead himself, according to notes compiled by the DISD board secretary of the meeting. Brashear, aided by Castilla, distributed to the board a copy of the former committee structure. Brashear asked that a policy change be placed on the next agenda. The board secretary's notes say: "Mr. Kress indicated a discussion would be placed on the agenda for the next meeting."
By the next work session, in the late afternoon on January 26, 1995, Kress had indeed devised a plan for committees. He distributed a two-page proposal. In it, he stated: "There has been considerable discussion among Board members in recent weeks about the need for the Board to be better informed about critical issues facing the District and to be more involved in the governance and overseeing the effective implementation of key Board initiatives. To that end, some Board members have proposed that Committees or working groups be established to facilitate a more informed and more actively involved Board.
"Other Board members have expressed opposition to the formation of Committees because of their perception that Committees in the past have contributed to Board micromanagement of the District, an inappropriately heavy burden on administrative resources, and an unwise and unhelpful addition to Board member workload.
"As a way of taking first steps to move forward," Kress proposed that the board establish three ad hoc committees on educational reforms, business and technology, and student development. The committees would not be permanent.
While he wasn't fully embracing the committee concept, Kress had decided who he wanted to appoint to each of the ad hoc groups. In hindsight, his tentative appointments are revealing. Kress split the board so that no two African-American members were on any one committee.
Kress defends his proposal, stressing that there were only three black board members, and he assigned one to each committee.
At that point, however, Kress seemed willing to allow all board members to observe and attend any committee meeting. "But only Committee members may participate as such in the affairs and deliberations of the committee," he wrote.
The ad hoc approach didn't satisfy proponents of the committee system like Brashear. He had waited nearly two months for Kress' plan, and he wanted some permanent sense of participation, Brashear recalls. The debate at the work session continued "for some time," the board secretary noted. It concluded when Kress agreed to appoint the committee to create committees. On that panel, he put four members: Castilla as the chair; Lynda McDow, a newcomer to the board; Yvonne Ewell, one of the more outspoken African-American members; and, of course, Dan Peavy.
Peavy had by then earned a reputation on the board as Kress' water boy. A businessman who graduated from the University of North Texas with a bachelor's degree in music and from Southern Methodist University with a master's, Peavy seemed to revere the DISD board president, one former board member recalls.
"He wanted to be liked by the business crowd that liked Kress," the board member recalls. Peavy himself says he had "tremendous" respect for Kress' efforts to reform the school district. "I was supportive," Peavy says. "I think I served his interests."
When the four-member committee to create committees met on February 3, according to DISD board documents, matters went smoothly. "After an hour's discussion, the committee had decided on a format and design for a committee system," a memo from the board secretary's office states. The panel produced its seven-page proposal to take to the full board the next week.
There was no indication from board records that Peavy objected to the plan or had thoughts about when the meetings should be scheduled. Board members present at the meeting do not recall Peavy bringing up the idea that the committees should meet simultaneously.
But that changed at the February 14 work session of the full board, held in the afternoon before a scheduled formal public meeting, when the committee's report was discussed.
Even before the meeting, Brashear suspected trouble was brewing. "I learned from the board secretary that Sandy had pulled the committee report off the agenda," Brashear says. "I called Sandy and pleaded with him to put the item back on the agenda." At that point, Brashear's notes from the time indicate, Kress agreed he would.
Castilla also wanted to send Kress a get-off-the-stick message. In a letter dated February 10, 1995, Castilla wrote Kress: "I think it would be in the best interest of the Board that I bring the committee structure discussed and agreed to by all members of the committee to the full Board at the Tuesday, February 14, Work Session."
The committee on committees did indeed present its proposal at that work session.
But, unexpectedly, Peavy countered with his surprising proposal, which included the provision that the committees would meet simultaneously. Committee proponents had reached their breaking point, Brashear recalls. He had, after all, been asking Kress to get the board to vote on establishing committees since November.
The impact of the stalling was not lost on Yvonne Ewell either. According to the board secretary's notes, Ewell made the "comment at the work session that you cannot have oversight over that which you do not know about. The purpose of committees, she told the group, is to allow [the] public to know about their business. I'm not willing to take disenfranchisement for another three years...The issue is systematic and fundamental reform."
Kress said the discussions would continue.
But at the formal board meeting held the evening after the afternoon work session, when the press was in attendance, the discussions did anything but continue. Frustrated with Kress' foot-dragging, the black board members made sure of that.
At the evening meeting, Peavy gave the invocation and led the pledge of allegiance. Then all three African-American school board members, as well as lone Hispanic member Castilla, left the meeting to protest the absence of the committee on committees' proposal from the agenda.
The dramatic exit was a relatively quiet, decorous way to protest the board's leadership, compared with other tactics that have become common at DISD meetings--yelling, gun-toting, and nose-to-nose confrontations. But the walkout caught the public's attention because it was one of the first times in recent memory that the African-American school board members had done it.
"Everywhere we look, the four Anglo board members are occupying leadership positions," Brashear said during a news conference held a few days later to publicize the minority members' concerns. "This is not by mistake. It's intentional."
It was time, Brashear thought, to bring in the big boys, the business leaders who helped finance the campaigns of Kress and the other white members. On February 20, Brashear sent a letter to all the board members and mailed copies to the Greater Dallas Chamber of Commerce, Texas Utilities executive Earl Nye, and Pettis Norman, a former Dallas Cowboy and high-profile black businessman and community leader.
"We strongly believe that two permanent committees must be established to focus our attention on education and business affairs," Brashear stated in his letter.
Norman, who heads Dallas Together, a group of 42 chief executive officers working with companies on multiracial issues, took the lead. Norman says he spoke with Kress several times "at length" about setting up committees.
Kress says the board was "making progress," and that Norman's input "isn't what made the difference."
Within a matter of days, Kress reversed course and established two committees that were scheduled to meet at different times. They were temporary, but they were not ad hoc.
Kress appointed to the education committee two African-American board members--Ewell and Gilliam. The committees were to meet at different times so board members could participate when they liked.
The committees Kress had resisted were finally established, and he says that that alone is proof there was nothing untoward about the process.
"We compromised, after some protest," Kress says. "We reached an agreement, and we moved on."
But the fractious episode set the stage for turbulent times ahead.
In September 1995, a partial transcript of one Peavy Tape was mailed anonymously to school board members and ultimately read aloud at a board meeting. Peavy's racial ramblings reflected poorly on Kress. Black leaders in Dallas argued that Kress should have displayed more antipathy toward Peavy's language during the two men's conversations.
Within three months after the release of the tape--in January 1996--Kress resigned from the school board. At a press conference held to announce the news, Kress held his 18-month-old son Caleb and said: "I have no idea what the next challenge will be, but I am sure there will be one."
In April 1996, the U.S. Attorney's office indicted Peavy on bribery charges. Kress intervened during the pre-trial stage, arguing that the illegally intercepted recordings should stay under wraps. Others on the school board, who were not taped, held the opposite opinion.
In July 1996, African-American school board member Ewell sent a letter to Coggins. "This will communicate my desire that you release the information related to the Peavy tapes as soon as it is feasible," Ewell wrote. "This issue, although unpleasant, commands our best attention and devotion to duty above all else." At that time, Coggins did not act on Ewell's letter.
The U.S. attorney is no stranger to Sandy Kress. Coggins says the two are friends. Fellow travelers in Democratic politics, the two talk regularly and see each other at social functions. They were law partners in the early 1980s at the now-defunct firm Johnson & Gibbs. Coggins contributed $250 to Kress' school board campaign fund in 1992.
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.
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