A federal prosecutor has told a judge that Peavy and Finlan may be subject to criminal investigation for merely discussing what is on the tapes.
The tapes, made surreptitiously by a neighbor of Peavy's, contain some 60 hours of conversations of the former Dallas Independent School District board member speaking on his cordless phone with various other elected officials, school district administrators, friends, and family members.
The tapes surfaced during the federal government's investigation of Peavy for allegedly taking kickbacks on school district insurance contracts. Peavy was acquitted last fall of federal bribery charges borne of that investigation.
However, Peavy was forced to resign from the school board after a transcript of one snippet of a conversation containing racial slurs was leaked to school board members.
Still lingering is the question of the tapes themselves, and who may have illegally learned or disclosed their contents. (The neighbor who recorded the conversations pleaded guilty to a charge of illegally intercepting a telephone conversation and paid a $5,000 fine.)
Federal law prohibits not only the intentional interception of telephone conversations, but the disclosure of the contents of the conversations. The statute, however, is vague and has been subjected to relatively little refinement by the courts.
Last month, Paul Coggins, the U.S. attorney in Dallas, asked a federal judge for permission to forward the Peavy Tapes to the Justice Department's Civil Rights Division in Washington for a possible investigation into criminal civil rights violations.
One question is whether Peavy and former school board president Sandy Kress--a friend and former law partner of Coggins'--were captured on the tapes discussing ways to limit the influence of black school board members. The Dallas Observer first reported on the conversations between Kress and Peavy in a January 23 cover story, 'It's all a matter of power.'
Kress, who anonymously intervened at Peavy's criminal trial to block use of the tapes in that proceeding, is not objecting to Coggins' attempt to refer the tapes to Washington, according to the U.S. attorney's motion.
But Coggins' office is raising more than the question of potential civil rights violations, the Observer has learned.
In the same motion filed last week seeking permission to send the tapes to Washington, Assistant U.S. Attorney Phillip Umphres also told U.S. District Judge Jorge Solis that another criminal inquiry may be forthcoming.
Umphres was referring to a document which Finlan filed in an unrelated federal lawsuit last month. In a pleading as part of a lawsuit against DISD, Finlan said that Peavy has discussed the contents of the tapes with him. Finlan's legal brief cited Peavy as saying that the tapes revealed "serious wrongdoing by Peavy and other members of the Dallas Independent School District."
In his motion to Solis, who has kept the tapes sealed since Peavy's bribery trial, Umphres wrote: "The disclosures by Finlan raise at least two troubling issues that the government believes warrant additional criminal investigation."
Specifically, Umphres contends that if Finlan's legal brief correctly reflects comments made by Peavy, then "Peavy is himself now guilty of disclosing the contents of illegally intercepted conversations."
In addition, Umphres argues that "subsequent disclosure by Finlan and others to whom he in turn discloses the tapes' contents may subject Finlan and those other persons to criminal liability."
The possibility that Peavy could be liable for disclosing the contents of conversations in which he took part is an odd one, and Umphres concedes that he is wading into uncharted waters.
"Although there is no case law providing guidance on the issue of whether the current statute allows a person who has been unlawfully intercepted and recorded to thereafter use and disclose the content of the interceptions with impunity," Umphres stated in his pleading, "at least one case interpreting an older version of the federal wire intercept statute indicated that an illegally intercepted party may not retroactively 'bless' the initially unlawful interception."
Solis has not yet responded to the U.S. attorney's request. But the very fact that the U.S. attorney filed it indicates that Coggins has not given up on the notion of prosecuting individuals tied to disclosing the illegally taped conversations.
Tom Mills, the attorney who represented Peavy in his bribery trial, contends that the interest in Peavy and Finlan indicates that Kress has some influence on the U.S. attorney's office.
Mills says he was told by Umphres that Kress made a request for an investigation of who might have violated the wiretap statute and released information contained on the tapes. Mills said Kress' request was in response to Finlan's court filing characterizing Peavy's comments about the tapes.
Umphres would not confirm or deny that Kress had requested a criminal investigation. Kress says he did not make a "formal request" for one.
For his part, Peavy "did not violate any wiretap statute," Mills says. Mills has stated previously that his client did not have substantive conversations with Finlan about the tapes. Finlan also believes the U.S. attorney has overstepped his bounds. "Let me explain it to you," says the persistent and loquacious litigant. "Paul Coggins is a moron. Dan Peavy has a First Amendment right to speak. There is no statute that can be interpreted to overturn the right to speech."
For good measure, Finlan adds: "Tell Paul if he wants me, come and get me.