By Chris Lane
By Jeff Balke
By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
Several years back, The Insider asked the then-District B councilman to explain how he spent $10,000 in cash he had reported withdrawing from his campaign account. It was listed on one of the few reports he had bothered to file on time with the city secretary.
The stick-thin, bald-headed Yarbrough replied glibly that he had no receipts and could not recall the names of the election workers he claimed to have paid with the money. Then he got philosophical. The laws requiring accurate and timely reporting of political contributions and expenditures, opined the official in impeccable street English, "don't mean shit."
As philosophers go, the 49-year-old lobbyist won't be confused with Hegel or Kant, but last week events proved his worldview absolutely correct. Yarbrough once again glided through the net of the law, when a jury split 11-1 to acquit him on charges he had accepted an illegal corporate contribution during his campaign for state agricultural commissioner in 1998. That write-in effort was in itself a fiction created by a man whose green thumb works only for greenbacks. The sham state campaign allowed Yarbrough to lean on supporters for money during the municipal off-season when officials are prohibited from soliciting contributions for their city campaign accounts.
During the testimony in Judge Belinda Hill's court, no one disputed that Yarbrough had accepted, endorsed and deposited an illegal corporate contribution from Entertainment One exec Christine King. He simply claimed he had made a sloppy mistake. Of course, anyone who had followed Yarbrough's political career during his three terms on Council that ended last year knows that such "sloppy mistakes" are his normal operating procedure. Harris County Assistant District Attorney Bill Taylor says that he had four cases where Yarbrough had accepted such illegal gifts, but chose to base the third-degree felony charge on one instance in order to simplify the presentation to a single jury.
"I don't think the man turns down anything that's money," opined Taylor after the verdict. "His defense was why would he take a corporate check when he could get Christine King to write a personal check? At the time he got the money, he didn't know that, and he wasn't about to find out."
The mistrial was the third for Yarbrough in as many years. Twice previously he eluded federal bribery and conspiracy charges as part of the celebrated Hotel Six accused of conspiring to buy Council votes for the convention center hotel. This despite the repeated playing of a damning FBI videotape of Yarbrough taking $5,000 cash from an undercover agent. The money, claimed the councilman, was not a bribe but rather a campaign contribution. In both trials, he found jurors willing to buy his defense.
Yarbrough was the first official taken to trial on campaign finance violations by the D.A.'s office in 30-odd years. Previously several city councilmembers pled out on misdemeanor violations. District Attorney Johnny Holmes recalls the last case where someone received a jail term for a campaign violation.
"I'm the only guy in Texas that I know of who's ever put someone in jail for that kind of thing," says the D.A. In the late '70s Holmes, then chief of the special crimes division in his office, prosecuted a Houston lawyer who had run for state representative and refused to file anything with the Texas secretary of state. Garner Beck contended the campaign reporting laws were unconstitutional. A jury found him guilty, and he served 90 days in jail. Since then the law has been softened to a Class C misdemeanor with a fine but no jail time.
The Texas legislature passed tougher campaign finance laws in 1970 in response to the Sharpstown scandal, in which a Houston developer funneled prodigious amounts of cash bribes to public officials under the guise of campaign contributions. In Holmes's view, the legislature over-reacted and mandated stiff penalties, including jail terms, for minor infractions. In order to enforce the law, the burden is now on the prosecutor to select jurors during the voir-dire process who take campaign regulations seriously.
"Voir dire is where those kinds of cases are won or lost," explains Holmes, "because there are rarely any fact issues. Whether or not you've filed your campaign contribution and expenditure report with the secretary of state isn't exactly a high fact question -- you either did or you didn't. Kind of like being pregnant."
In most cases, the potential jurors answer yes during their screenings, but have problems when it comes time to deliver a verdict. According to Holmes, people use common sense.
"When you have something that's not reasonable as a punishment, people will more times acquit, not because they didn't do it, but because the minimum is so high it isn't worth the crime."
The Yarbrough verdict, says Holmes, is a perfect example. "How could this jury hang up 11-1 to acquit? There wasn't any fact dispute. He did it. But they weren't impressed. The pizzazz wasn't there."
Former federal prosecutor Mike Attanasio faced the same juror mind-set during two lengthy trials where Yarbrough was one of a group of defendants.
"I think there is a sense amongst the public that a lot of money flows through the campaign system to candidates," comments Attanasio, who now works as a civil litigator in San Diego. "Therefore, it becomes hard to make an appealing criminal prosecution when people understand that candidates around the country at all levels raise millions and millions of dollars."
Knowing how lightly the public regards campaign violations, defendants routinely attempt to elude more serious bribery charges by claiming they thought they were taking illegal contributions. When cash exchanges hands between willing parties, jurors are apt to see it as a victimless crime.
"When you're a prosecutor, you have to sell it that the victim is the system of government, and that the victim is all of our rights to honest public servants," says Attanasio. "But that of course is less compelling than a victim who has been assaulted or otherwise hurt or damaged in some way, ripped off of their life savings.When you have to sell the concept of good government, it is more difficult."
To Holmes, things would be a lot simpler if the legislature simply lowered campaign violations from felonies to misdemeanors and imposed penalties that fit the scope of the crime. He has made several such appeals to legislative committees in Austin. "I've been up there a number of times trying to convince those people they don't need to be making these election laws felonies. It's crazy. You want to fine 'em, [impose] liquidated damages, take away their right to be on the ballot, any of those things, fine. But putting 'em in prison? Boy, that's going to be a real prosecutor that can do that."
An indication of how murky the law can be came last week during the Yarbrough trial, when the woman who gave the councilman the corporate contribution inadvertently admitted on the stand that her company routinely violates state election law. King conceded she made a mistake in not giving Yarbrough a personal check. Entertainment One, explained King, prefers to have employees make its political contributions with personal checks, and then reimburses them later with bonuses.
State Ethics Commission lawyer Karen Lundquist says that what King so willingly described in court is in itself a crime.
"If a corporation has an agreement with employees for them to make contributions and then the corporation will later reimburse them for that in some form of bonus or salary payment," explains Lundquist, "then the actual contribution is from the corporation. It's illegal."
Will the district attorney prosecute King or Entertainment One on the basis of her testimony, given the refusal of jurors to convict the man who took the money?
Prosecutor Taylor may have lost the Yarbrough case by an 11-1 margin, but he isn't prepared to give up on enforcing campaign finance laws just yet.
"I find it hard to say, as clear as this one was, that we're just not going to pay attention to what the legislature says about corporate contributions because it's just not practical."