The Case Against Kay
One day late in the spring of 1992, then-Texas State Treasurer Kay Bailey Hutchison cornered one of her subordinates, R.T. Burkett, in a hallway.
An exacting boss, Hutchison wanted to know how much progress Burkett, director of information resources at the Treasury, had made on the "special project" she had assigned. She fired questions fast and furiously. How was he coming? Was he 20 percent through -- or 30 percent? On what day might he finish?
The 54-year-old computer technician, a veteran of 23 years in state government, had never before received such attention from Hutchison. The state treasurer, who kept no computer on her own desk, had previously graced his office with a visit only once.
But it wasn't just the novelty of Hutchison's intense interest that troubled Burkett. It was the nature of her "special project." Hutchison had ordered the purging of backup computer tapes containing political and personal documents her executive staff had produced. She had pursued the deletion of records even after the treasurer's office faced criminal investigation for misusing state employees and equipment.
This meant that the treasurer of the state of Texas was ordering subordinates to destroy what was likely to become evidence.
Burkett and the staffer he had assigned to the project, programmer-analyst Wesley McGehee, nervously resolved to carry out Hutchison's instructions -- but also to protect themselves. They carefully logged every request tied to the deletion of records. And instead of purging the material entirely, they secretly made two copies of everything.
After they completed the two-month job, McGehee taped the cassette-sized computer tape containing his copy of the purged records to the underside of his office desk. Later, he would discover that the tape had been mysteriously erased. Burkett took his copy of the tape home and hid it in his garage.
For more than a year, as Hutchison launched the campaign that would elevate her to the U.S. Senate, Travis County prosecutors conducted a low-level investigation into rumors of abuses by her staff. But given the lack of physical evidence, the probe was going nowhere.
Then, on June 9, 1993, that suddenly changed. Four days after Hutchison's victory in the U.S. Senate runoff, McGehee, racked by guilt, went to the D.A.'s office with his stunning revelation: the newly elected U.S. senator had ordered the destruction of embarrassing state records. Burkett would later produce evidence of this: his tape, which he carted into a Travis County grand-jury room in a pizza box.
The two men told their story behind closed doors to the grand jury that would later indict Hutchison. But they never had a chance to unburden themselves in open court, before a trial jury in Fort Worth.
This February, during pretrial procedural wrangling, Judge John Onion announced that he would make no decision before testimony began on the admissibility of evidence --including material from the "pizza-box tapes" -- that Travis County District Attorney Ronnie Earle considered critical. If the trial began and Onion refused to let the jury see the physical evidence, Earle believed, it could torpedo his entire case. The D.A. made a fateful decision: he declined to move forward with the senator's prosecution. He later explained that he hoped to do so later, presumably before a more receptive judge.
Judge Onion, though, wouldn't give him that chance. Onion instead swore in a jury, then immediately ordered the panel to acquit the first U.S. senator from Texas ever to come under criminal indictment. The abrupt court-ordered acquittal left the voluminous evidence of exactly what it was that Hutchison did -- evidence that fills four walls of shelving in a locked, windowless room in the Travis County D.A.'s office -- largely hidden from public view.
In the court of law, Kay Bailey Hutchison's acquittal had closed those files. Whatever she had done, the judicial system had judged her innocent.
This allowed Hutchison, who has repeatedly denied any wrongdoing, to emerge the victor in a political and legal war that had lasted for more than a year. Proclaiming the forced verdict proof of her innocence, she emerged from the crisis primed to trounce any opponent the Democrats might put up against her.
But Hutchison's indictment was always far more than a legal exercise. Her indictment dripped with high-stakes political implications: it threatened to unseat the first Republican since 1875 to hold the U.S. Senate seat previously occupied by Lloyd Bentsen.
For months prior to the acquittal, D.A. Ronnie Earle -- a Democratic prosecutor -- and his staff had leaked snippets of their case against Hutchison to the press.
In turn, Hutchison and her handlers -- including attorney-husband Ray and crack Houston criminal defense lawyer Dick DeGuerin -- carried out her aggressive defense more in the political arena than in the courtroom. Recognizing how much hung in the balance, they mobilized the entire machinery of the Texas Republican party, from fellow U.S. Senator Phil Gramm all the way down to local precinct chairmen.
And in the political arena, where she now seeks reelection against Democratic nominee Richard Fisher on November 8, the case against Kay Bailey Hutchison remains to be judged.
For 12 hours one day this March, D.A. Earle granted a reporter from the Dallas Observer, a sister paper of the Houston Press, unfettered access to the Hutchison files: hundreds of internal documents and private memos, a stack of depositions and thick volumes of secret grand-jury testimony. Much of the material has never been disclosed. After reviewing the records, the Observer reporter photocopied more than a thousand pages on a machine in the D.A.'s office. A clerk helped make the copies.
It's not hard to guess some of Earle's motivation in granting a reporter such extraordinary access. Having lost in court before having a chance to throw a punch, he is eager to justify the time and expense his investigation of Hutchison required.
From the beginning, Hutchison has been scornfully dismissive of the charges against her. She claims that Earle was the frontman in a political conspiracy, fed by a few unworthy Treasury subordinates, but calculated from the start to reclaim her Senate seat for the Democrats. "The reason the indictment happened to me," she declared to the Dallas Morning News, "is because I won an election by too wide a margin."
It is worth noting that grand-jury testimony is unchallenged, taking place behind closed doors, without any cross-examination of the accusers; only the grand jurors, the witnesses and the prosecutors are present.
That said, it's clear that the secret Hutchison files paint an extraordinary -- and unflattering -- portrait of Texas' junior U.S. senator. They offer striking insights into the nature of the criminal case against her as well as her personality, leadership style and temperament. Hutchison's acquittal notwithstanding, these remain critical issues for voters assessing her fitness for public office.
The Hutchison files also make clear that the senator's claims about the political origins of her prosecution are nonsense.
Beginning in June 1993, 33 witnesses testified under oath before the grand jury. Most of them were Republicans, and were her own hand-picked aides and associates; 26 worked at the Treasury.
Collectively, the files describe an obsessive, de-manding and paranoid woman who was at times brutal to her staff, berating and pinching aides, and even, in one now-legendary incident, whacking a subordinate on the shoulder with a notebook.
More important, the Hutchison files reveal how one of Texas' top elected officials carried on extensive political operations out of the Treasury -- ignoring, several staffers testified, repeated complaints that the practice was improper. They also show that, after her office's political activities were partially revealed, she personally directed a laborious effort to cover up evidence of wrongdoing.
While contemptuous in public of the charges against her, the senator adopted a different tone behind the closed doors of the Travis County grand jury.
"Very respectfully," she told the panel on September 9, 1993, in response to Assistant D.A. Claire Dawson-Brown's first question, "I must take the advice of my counsel to assert my right to remain silent under the Constitution of Texas and the United States to each question that you would ask, and I am very sorry to have to do that."
"Is it your intent," the prosecutor asked, "to assert your right to the Fifth Amendment to any further questions this grand jury would ask?"
"Yes, it is," the senator replied.
After a brief pause, Dawson-Brown excused the witness.
"Thank you," the senator said before her exit. "I'm very sorry."
In the auditorium of Club Hill Elementary in Garland, twin fifth-grade boys swayed to the rhythms of "Itsy-Bitsy Teeny-Weenie Yellow Polka-Dot Bikini." It was late one Sunday afternoon in April, and the kids were performing in the school PTA's 20th-anniversary show, before a pair of very special guests: U.S. Senator Kay Bailey Hutchison and her husband, Ray.
Seated in the front row of the packed room, Kay and Ray composed a portrait of opposites. He guffawed and slapped his knees as the youngsters sang out of tune. She, watching with her hands folded tightly across her lap, was barely able to force a smile.
Finally, the senator motioned for one of her aides. The show was expected to last another ten minutes, but she couldn't stay for the finale. As two young girls took the stage to perform "With a Little Help from My Friends," the Hutchisons headed for the door.
Almost every weekend now, Senator Hutchison, 50, returns to Texas to endure the rigor of public events. With Democratic nominee Richard Fisher nipping at her heels, Hutchison must keep pressing the flesh to keep her treasured Senate seat.
She didn't make it to Washington easily. A 1967 graduate of the University of Texas law school, she started out as a political reporter for Houston's KPRC/Channel 2. In 1971, she jumped the fence after Republican National Committee co-chair Anne Armstrong, whom Hutchison had interviewed for a story, offered her a post as her press secretary.
Hutchison's first elective office came two years later, as a state representative from Houston's Bellaire district. Then, during the Ford administration, she served a stint on the National Transportation Safety Board. When she returned to Texas in 1978, she moved to Dallas, where she married bond attorney Ray Hutchison, who was seeking to realize his own political dreams. A former state legislator himself, Ray that year lost a bid for the Republican gubernatorial nomination to William Clements Jr.
In 1982, it was Kay's turn. She went after a north Dallas congressional seat, but lost to future Dallas mayor Steve Bartlett. Eight years later, as Ann Richards swept into the governor's mansion, Kay whipped Houston Democrat Nikki Van Hightower to become Texas state treasurer.
The treasurer's office is charged with the most mundane of governmental duties: investing and managing state funds, collecting cigarette taxes and administering Texas' unclaimed-property laws. But the office was clearly a steppingstone. After all, the occupant immediately preceding Hutchison was Ann Richards.
So even before Hutchison moved to Austin, there was speculation about her future political prospects. After all, she was the first Republican woman ever elected to statewide office in Texas -- and she was also clearly ambitious.
But Kay Hutchison did not view Travis County as a friendly environment. A Democratic stronghold, Austin is an offbeat, laid-back place. Kay was button-down, white-collar prim, driven and straightlaced. In moving to Austin, she had left her husband and a well-established social network behind. "She didn't know things. She didn't know people," John Bell, one of her deputy treasurers, later testified. "...It was a hostile place ... full of radical Democrats.... She did not like it here."
Hutchison clearly perceived Austin as brimming with political enemies, according to a second deputy treasurer, Michael Barron. She was "constantly almost in a state of paranoia," Barron testified. "From day one, she announced to us that [executive assistant in the governor's office] Paul Williams was out to get her; that [Democratic Comptroller] John Sharp was out to get her; that everybody in the Legislature was out to get her."
Hutchison sought to compensate by surrounding herself with loyalists at the Treasury. She hired most of her executive secretaries and assistants with referrals from other Republican politicians. Stephanie Nooner, Hutchison's chief scheduler and special assistant, had served former governor Bill Clements. Trilby Babin, who assisted Nooner for eight months, had handled scheduling duties for Clements' wife. Sandra Snead, who was Hutchison's secretary for almost two years, had worked for former Republican railroad commissioner Kent Hance. Research and information specialist Pat Berry also had impeccable GOP credentials: she done campaign work for Clements, Hance and Texas Supreme Court Chief Justice Thomas Phillips.
As one of two deputy treasurers, Hutchison initially named Warren Idsal, son-in-law of her mentor, Anne Armstrong. But Idsal lasted only six months. Later, Hutchison cited Idsal's ouster as evidence of her unflinching approach to personnel management. When a frustrated deputy threatened to quit, Hutchison responded: "Look, let me tell you something. I got rid of the son-in-law of Anne Armstrong, who is one of my best friends. Don't think I wouldn't get rid of you if I wanted to."
With Idsal gone, Hutchison's top deputies were two men who had no significant political ties to any party. Michael Barron, 41, had come to the Treasury from an accounting firm in California. A professional numbers man eager to return to Texas, he was hired as deputy treasurer for operations, in charge of the accounting and computer divisions. John Bell, 49, was deputy treasurer for finance. He had moved up after five years in the department and was responsible for unclaimed property, cash management, the agency budget, investments and other key administrative duties.
According to the testimony of her subordinates, Hutchison early on began turning to her office staff for help handling personal chores in Austin -- such as unlocking a door for a cleaning woman or gardener when she was out of town, arranging for a dress to be altered or previewing houses for possible purchase. At first, the aid was freely offered. But performing nonstate chores for the boss soon became a routine expectation, Hutchison subordinates testified.
Before the grand jury, Executive Assistant Sharon Connally Ammann estimated that she devoted 50 percent of her time at the Treasury to Hutchison's personal or political matters. Secretary Sandra Snead guessed that such tasks consumed 90 percent of her time. As proof, she brought to the grand-jury room telephone numbers from her Treasury Rolodex for Hutchison's yard man, campaign stationery printers, hairdressers, alteration lady and bankers, among others.
Even as she sought such personal aid from her staff, Hutchison alienated many subordinates. They came to regard her as abusive, overly demanding, short-tempered and distrusting. Deputy Treasurer Barron recalled for the grand jury an incident he witnessed that helped shape his view of Hutchison.
Hutchison had instructed an assistant, Barron recalled, to telephone the Guest Quarters Hotel in Austin and offer a list of four reasons why the establishment should, at no additional expense, provide Hutchison with a private room for her luncheon party that very afternoon. When the assistant came back empty-handed, Hutchison, who had been eavesdropping, assailed her.
"Why can't you do what I tell you to do?" Hutchison bellowed, according to Barron.
But hadn't she, the assistant sputtered, accurately supplied the restaurant with the four reasons that Hutchison had specified?
"Well, you didn't say them in the order that I told you to say them," the treasurer responded, according to Barron.
Hutchison liked her instructions followed precisely. Pat Berry worked at the Treasury for the first six months of Hutchison's tenure, and though she had officially been assigned to perform research on legislative matters, Berry testified that she also traveled with the treasurer to some political events. At one such function, Berry recalled, she stood holding Hutchison's purse about six feet away from her boss, just as she thought she'd been told to do.
But six feet was too far, Berry discovered when Hutchison chewed her out later in front of other employees. Testified Berry: "She let me always know when I did something that did not please her."
Four Hutchison aides -- Ammann, Snead, Babin and Berry -- testified that they told their boss she was making them perform too many personal and political tasks on state time. Snead testified that she and Stephanie Nooner complained to Hutchison so frequently, and the treasurer reacted so poorly, that they began flipping a coin to decide who would take on the task of raising the issue yet again.
Snead said she urged Hutchison to install a separate phone line for her personal and political calls -- a change that Hutchison ultimately approved. The treasurer refused, however, to open a campaign office in Austin, as many of her fellow statewide officeholders have done. (She instead instructed staffers, the women testified, to use the Austin office of her husband's law firm for time-consuming tasks.) Nor would Hutchison follow their suggestion to use campaign funds to hire a traveling aide, another common practice among politicians trying to avoid blurring the lines between state and political obligations.
"We are doing nothing that Ann Richards didn't do," the treasurer told Berry when she complained about Hutchison's practices for getting nonstate chores accomplished at the office. Snead testified, "She said we were always nipping at her, just telling her that things were not like they should be. She called us mosquitos."
"I don't like to say that she just didn't care, but she didn't -- I mean she expected us to do what she told us to do," Snead testified. "And she just didn't want to hear when we would tell her, you know, 'We just don't feel comfortable doing this.' She would say, you know, 'Do it. That's nonsense. Just do it.' "
A basic mistrust underscored the relationship between Hutchison and her employees. Hutchison failed, for example, to tell even her two deputy treasurers where she was when calling them from the road. Nor would she allow them copies of her complete daily schedule.
Hutchison griped to her state-paid subordinates that they were failing to protect her politically. "She complained that we didn't have any political sense and could not help her, and she needed somebody politically who could help her," Bell testified.
Shortly after Hutchison appointed Barron and Bell as her top deputies, she gave the pair an article written by the governor's chief of staff in another state; she told them the article's thinking reflected "her philosophy in total," Barron testified. "The article said that the staff of an elected official needed to remember that they were not elected by anyone; that the elected official was the elected person and the staff was only there to serve the elected official."
Most of those who displeased the boss escaped with a caustic scolding. But Hutchison hit, pinched and shoved employees with enough regularity to make such outbursts a kind of leitmotif of her management style.
Trilby Babin, who served as Hutchison's scheduler, recalled one such minor assault during a drive to the Capitol. Inside the automobile, Babin recalled, Hutchison was trying to maintain a conversation on the car phone and, at the same time, instruct Mark Toohey, her press secretary, to remove an item from her attache bag. Toohey apparently couldn't determine from Hutchison's silent gestures precisely what the treasurer wanted.
"She was becoming very irritated," Babin recalled. "Mark was flustered. It seemed to escalate. And she lost her temper, and pinched him." Babin testified that Hutchison got Toohey on the arm. When they returned to the office, Babin recalled, Toohey half-jokingly compared battle scars with other members of the Treasury staff.
Hutchison's too-close encounter with Executive Assistant Sharon Ammann generated so much embarrassing publicity after Ammann detailed the incident to reporters on the eve of the special election for the Senate that the treasurer took a lie-detector test -- she told reporters she passed -- to buttress her denial that the incident ever took place.
But both Ammann and secretary Sharon Snead provided sworn testimony about the encounter to the grand jury. The two women testified that Hutchison had grown angry at Ammann for failing to find a phone number fast enough. Hutchison had asked Ammann to find the telephone number of a wealthy San Antonio doctor who had contributed to her campaign, assigning her aide the very sort of minor political chore that would later provide the basis for her criminal indictment.
In this case, the treasurer was traveling to San Antonio and wanted to inform the doctor of her visit. But Ammann couldn't uncover the number anywhere. She went into Hutchison's office to apologize for her ineptitude, only to discover she was searching with an incorrect spelling of the name. Ammann then learned from directory assistance that she needed to provide the doctor's specialty to narrow down the list of numbers. So she returned to Hutchison's office to ask about the doctor's practice.
That query apparently struck a nerve. Hutchison came into the secretarial area, screaming and banging on the desk, Ammann and Snead recalled. Stunned, Ammann stood near a file cabinet, where she was frantically searching for the number in other records. That's when, the executive assistant testified, Hutchison punctuated her tirade by whacking her subordinate on the shoulder with a notebook. "She just pounded me every time," Ammann testified. According to the two women, Hutchison ended her tantrum by walking back into her office and slamming the door.
This was not the last physical encounter between Hutchison and Ammann. In mid-summer 1991, Treasury employees peering out of office windows -- including Barron and Snead -- were startled to see the two women out in the parking lot, pushing and shoving one another.
Snead testified that the incident began after Hutchison told another staffer that she no longer trusted Ammann. After Ammann heard about the remark, she followed Hutchison out to the parking lot to confront her.
Ammann left the Treasury in September 1991. She had worked in the agency for nine months.
Responding to the widely published reports of Hutchison's binder-bashing, Dick DeGuerin painted the incident as an insignificant complaint by a disgruntled subordinate who couldn't meet her boss' high standards for performance. Besides, DeGuerin has noted, such legendary Texas political figures as Lyndon Johnson and John Connally -- Ammann's father, as it happens -- also had reputations for being hard on their staffs.
DeGuerin would have an opportunity to challenge some of his client's accusers during pretrial depositions. What kind of events did she believe were political, the lawyer asked Ammann after she asserted that Hutchison demanded she perform personal and political chores.
Ammann cited a trip to a baseball game that she had scheduled for Hutchison.
"What did she discuss at that baseball game?" DeGuerin asked.
"I have no idea. I didn't go," Ammann conceded.
Then how did she know, the attorney wondered, that the game was a political or personal event -- rather than one for official state business?
But other complaints about the practices in Hutchison's Treasury were harder to dismiss.
Pat Berry testified that she also did political work at the Treasury. She always tried to make up the difference, she said, by putting in extra hours on her Treasury duties.
But there was a problem: from its inception, Berry's job was so focused on political work that her Treasury duties seemed an afterthought. She conceded to the grand jury that she came to the Treasury with little specific experience. Given her lack of quantitative skills, she said, she and Hutchison decided she would work lobbying lawmakers for the department budget and passage of bills. But even in the first interview, Berry testified, Hutchison made it clear she expected her to work on political matters.
And Berry did. She testified that she was part of a group of Treasury employees, including Mark Toohey and Stephanie Nooner, that met with Hutchison for weekly breakfast meetings in the cafeteria specifically to discuss political matters. By her own testimony, she helped produce a newsletter, parts of which were produced on state computers, to go to Hutchison contributors. She also admitted writing solicitation letters while at the office to potential honorary guests for a Hutchison fundraiser.
In a one-page May 15, 1991 memo that Berry prepared for Hutchison, she drafted a response to Hutchison's concern that she was a politically unguarded target in a den of Democrats. Hutchison needed to create within the agency "a team of 'politically aware' people whose primary objective is to assist the treasurer and the executive staff," Berry wrote.
In her testimony, Berry said Hutchison's complaints at one of those early-morning strategy sessions had inspired her to write the memo. Testified Berry: "She was concerned -- the concern was raised at the breakfast one time that we weren't looking out -- we weren't being politically aware enough; that we were kind of scattered throughout the Treasury and had so many other things going on, that we needed to -- you know, to realize that she was an officeholder and we needed to -- you know, help her along."
In the harsh light of the grand-jury probe, Berry's memo was highly suggestive. Here, a Treasury employee, after conferring with Hutchison, was drafting a plan to have select state employees work regularly on political projects.
Berry never saw her proposal reach fruition. She left the Treasury shortly after producing the document, accepting a position with political consultant Karl Rove, a former Hutchison campaign manager.
Berry told Rove she wanted to leave her Treasury job because she "shared some concerns about ... the political work" that staffers -- including herself -- were doing on state time.
Even as Berry was privately expressing concern about political activities at the Treasury, they were about to accelerate, with the help of an ambitious 28-year-old named David Criss.
Criss, a former aide to Republican state Senator Teel Bivins, came aboard in the fall of 1991, weeks after Berry's departure. In some respects, he represented the increasingly isolated state treasurer's short-term salvation.
Politically connected and consumed, Criss subscribed -- hook, line and sinker -- to Hutchison's gospel of personal devotion. Shortly after his arrival, Barron testified, Criss explained his philosophy: "You know, the only reason you work for an elected official is that you want to hang on to their coattails because you think that they are going to go somewhere, so you want to be able to go with them.... That's my goal here. I consider I work for the treasurer, not for the Treasury."
Hutchison and Criss instantly became close. They regularly met for early-morning walks in Hutchison's neighborhood. During the workday, Criss could frequently be found in the treasurer's office.
For Barron and Bell, Criss became an annoying enigma. The boss had consulted neither deputy treasurer about her plans to hire Criss, at a salary of $53,045 a year. And it was utterly unclear to them what state duties he was supposed to perform.
Hutchison assigned Criss the title "director of special projects," but, Barron testified, Criss told him that he didn't like the designation and feared it would raise red flags to outsiders. Criss later went to the print shop and had new cards printed bearing the title "director of policy and planning." Barron testified that he complained to Hutchison about such high-handedness, but she dismissed the objections, commenting, "Well, just handle that. I don't care what he calls himself."
Barron testified that Criss freely told him he was a political person, there to protect Hutchison. He didn't keep the political fundraising he performed for the treasurer a secret either. One day, Barron recalled, Criss sauntered into his office and asked the deputy to select a shade from among several different colors of stationery.
"What's this for, David?" Barron asked. Criss told him it was for a mailing that he was preparing to send to potential contributors to an officeholders' account for the treasurer. Barron scolded him for working on the project on state time.
Twice, Barron recalled, he walked past an assistant Criss had hired, Kelly Gilbert, and saw checks splayed on her desktop. "I asked her what those were, and she said, 'Well, they were contributions and checks in response to some solicitations that, I guess, David had helped send out.' "
Barron and Bell both went to Hutchison to complain about the checks. "I think that really looks bad," Barron recalled telling Hutchison. The treasurer said she was unaware of the situation and would talk to Criss. Barron never saw the checks displayed so openly again.
But the political fundraising at the Treasury didn't cease. Indeed, in December 1991, Criss was scheduling a heavy-hitting fundraising event for Hutchison in Dallas. In letters produced for Hutchison on Treasury computers, he solicited Dallasites to permit the treasurer to use their homes for cocktail and dinner events.
"I have tried to find the nicest home possible for each fundraiser and without question yours is the most spectacular in Dallas," Hutchison wrote to oilman T. Boone Pickens in one failed attempt. Similarly worded letters for the February reception and dinner convinced Lucy Crow Billingsley, daughter of Trammell Crow, to open her home for the evening.
At the same time, Criss also helped craft a list of invitees to the $250- to $1,000-a-plate affair. Criss often negotiated the stickier side of Hutchison's dealings with contributors. When she wanted to shed a political wannabe offering to host a fundraiser without permanently offending the aspirant, for instance, the treasurer relied on Criss. In a November 7, 1991 letter, a San Antonio lawyer wrote Hutchison offering to host a small dinner party to raise money. Hutchison passed the letter to Criss with a note -- "Not a Player" -- in the margins, and asked her assistant to help her find a way out.
While valuable to his boss, Criss failed to acquire many friends at the Treasury. His colleagues viewed him as brash and cocky. Hutchison's confidante waltzed around an agency full of anal-retentive number-crunchers with an annoyingly casual air. He didn't face the drudgery that confronted other Treasury staffers. Director of investments Linda Patterson complained to Barron, the deputy treasurer testified, that Criss upset her staff because, while they were working hard, "he didn't seem to have any job...."
Bell and Barron lodged their own complaints. "I can't control this guy," Bell told Hutchison, according to Barron's testimony. "You said you want him reporting to me, but I don't have anything to give him to do." Bell warned Hutchison. "He's going around saying he's your political person and all this stuff, and I think it's very dangerous."
"Exactly what is David supposed to be doing?" Bell pressed, according to testimony by Barron, who was also in the meeting. "Kay, I think we need to give him something to do. It looks bad that he doesn't have anything to do."
Hutchison's response, according to Barron: "John... find some issues that he needs to research or whatever."
Ultimately, Bell assigned Criss to research state spending on welfare and other services, as well as to study whether state spending levels posed a potential conflict with constitutional restrictions.
Before the grand jury, both deputy treasurers insisted that their boss knew Criss was doing political work on state time. "[Criss] definitely had an exaggerated opinion of his importance," testified Barron. "But I truly believe that she knew what he was doing."
Criss certainly wasn't hiding it. On March 13, 1992, he wrote a memo to Hutchison openly discussing various political fundraising projects that he was working on -- including the "Treasurer's Trust" office account -- while noting that he was also now spending some of his time on nonpolitical research for the Treasury. "I feel very good about the meeting with Mike and John and others," Criss wrote. "I think it may take a couple of meeting[s] to completely open the dialogue, but I think we made a good start. This week has been transitional, from fundraising to research, but I feel that ... things appear to be getting worked out and we can get you some needed support."
By the end of April 1992, Hutchison must have begun wishing she had heeded her deputies' advice to restrain Criss. That was the month Houston Post reporter Gardner Selby uncovered -- at least partially -- what Criss was doing.
Selby, a veteran journalist based in Austin, had received a tip that Criss kept files on Hutchison's major contributors and political thank-you letters on his office computer.
On April 17, 1992, a Friday, Selby visited the Treasury and confronted Criss with a printout listing a directory of files in his computer. Two days earlier, Selby had made an Open Records request for all the documents on Criss' computer.
Criss' first reaction to Selby was to fib his way out of the mess, according to Barron. He told the reporter he had printed the political letters on a laser printer at his home, Criss advised Barron.
Criss must have sensed that a storm was pending. His assistant, Kelly Gilbert, testified that Criss told her that week "that the story was coming out and that shit was going to hit the fan." She should take vacation or sick time, Criss advised her, just to get out of the office.
Selby's story appeared on Saturday, April 18. The reporter noted that he had hard copies of fundraising documents that included a notation that they had been printed on Kelly Gilbert's printer at the Treasury.
Criss' denial that he had used a state printer for political fundraising, and his claim that he had done the political work after hours and at home, was also part of the story. And Hutchison, who had been out of town that week, professed her ignorance of what was going on and pledged to launch an investigation immediately, Selby wrote.
The day after the story appeared, Hutchison called Bell to her home. They "talked about the political ramifications of this and what it could do to her," Bell later testified.
On Monday, Hutchison summoned both Bell and Barron. She wanted a detailed account of the previous Friday's events, she told her deputies.
Bell told the treasurer that Selby had brandished -- but never let him actually see -- a printout he identified as political material stored in Criss' computer. After the reporter left, Bell told Hutchison, he had asked R.T. Burkett and his computer technician, Wesley McGehee, to reconstruct computer records from Criss' computer for the last few days. Bell handed Hutchison the package of documents that order had produced. The stack of papers included political fundraising letters.
Hutchison reacted defensively, according to Barron. "Well, I had no idea this was going on," she declared. "I never authorized David to do anything on state computers, and I'm appalled that this was happening." Something had to be done about it, Hutchison said. "I want all of this taken off the machine," Barron testified she told them.
Bell warned Hutchison that Criss' assistant, Kelly Gilbert, might also have political documents on her computer.
"Well, I want it all; I want -- just wipe out everything that's on David's machine and on Kelly's machine," the treasurer ordered, according to Barron's testimony.
Then, Barron recalled, the treasurer posed the question that ultimately led to her indictment: "Would these documents reside anywhere else on any kind of backup?"
Barron told her they probably would.
"Well, I never authorized the personal or political work to be out there, and I don't want to be criticized for it being out there," Hutchison told Barron, according to his testimony. "And so I want you to go to those backup tapes and remove it all from the backup tapes."
Barron told Hutchison he would investigate what it would take to purge such records, and telephoned Burkett immediately after the meeting. Such a massive project, the director of computer services warned, would consume a tremendous amount of time; they could work on it only at night.
Recalled Barron: "So I went back and told Kay that, 'Kay, it can be done, but it's going to be an extremely tedious and time-consuming processing. It's going to require somebody to work at night, and there's lots of those tapes.' "
Her response, Barron testified: "I don't care how much work it is. I want it done, so have them do it and report back to me on what the progress is."
As desperately as she wanted to erase all traces of the improper files, her deputies testified, Hutchison also wanted to root out the snitch who had tipped off the Houston Post reporter. The treasurer instructed Bell and Barron, according to both deputies' testimony, to investigate who had leaked the story. "...She was unrelenting about it," Bell testified. "I did not get any work done for about two weeks. And she was on our case about it all the time."
While they were looking, the treasurer refused to give any possible suspects pay raises, Bell said. If they found the culprit, Hutchison wanted him fired, Barron said.
Under pressure to produce results, the deputies began focusing their suspicions on a computer technician who had left the department several months earlier to work in the governor's office. The technician might have leaked the agency's files from there, the deputy treasurers suggested.
Hutchison latched onto that theory, Barron testified. "...The treasurer was very suspicious that the governor's office was somehow involved in this and it was a plot to embarrass her and that she thought that [a Richards aide] specifically was involved in directing this effort, and she wanted us to track that down."
At the same time, Hutchison kept close tabs on the project to purge her agency's backup files. About a week after ordering Barron to purge the files of Criss and Gilbert, she expanded her project, giving him more names of those on the executive staff whose files she wanted deleted from the backup tapes. The expanded roster included Martha Wolfe, Stephanie Nooner, Sharon Ammann, Sandra Snead, Trilby Babin and Pat Berry, Barron testified.
"Ann Richards never had her stuff out there. And so, if I had known this was out there, I never would have allowed it, so I want it all cleaned up now," Hutchison told him, Barron testified.
The treasurer seemed disinterested in determining what political materials actually existed on those files. She never instructed Barron to survey them or make a printout, the deputy treasurer testified. She simply wanted them all destroyed.
As the deletion project dragged on for two months, Hutchison learned that her office had attracted the attention of Travis County D.A. Ronnie Earle.
In response to the Houston Post story, D.A. investigator Texas Martin had been assigned to explore whether Treasury employees had violated Texas ethics laws barring state employees from performing personal and political chores on state time.
The probe began quietly. Few at the Treasury besides Hutchison even knew that it was taking place. Hutchison, Bell and the treasurer's general counsel, Alecia Fetchel, prepared a response to the D.A.'s request for information and delivered it to Earle's office on May 12, 1992 -- even as the intensive effort to delete the backup files remained under way.
The Treasury's own review "indicated a relatively small amount of nonstate business has been prepared on the office computer," a three-page chronology of events sent to the D.A. under Fetchel's signature stated. But Hutchison's agency was making a voluntary offer to set everything right, the letter explained: she would reimburse the state for $5 worth of calls and two days' worth of Criss' pay.
While portraying Criss as a well-meaning, sympathetic figure, Fetchel's response blamed him for all misconduct and made clear his days at the Treasury were numbered: "Mr. Criss is a very sensitive individual and is, of course, embarrassed by these events. He is in the process of winding up his projects with the Treasury and will shortly leave the agency."
The response, of course, dramatically understated the extent of questionable political activity that had been taking place at Hutchison's agency. On Hutchison's direct orders, computer technicians were that very month deleting massive amounts of political material about which the treasurer's office was telling the D.A. nothing. Prosecutors say they later found 170 documents related to political and personal matters on the computer files of Criss and his secretary.
At first, David Criss seemed willing to take the fall for his boss. He even wrote a letter, one that appeared carefully crafted for public consumption, in which he expressed regret for having "mixed my home computer with the office computer." Privately, however, Criss was working to cushion his fall. Jim Francis, an influential GOP activist, spoke to the treasurer on Criss' behalf. "Are you sure that this is the right thing to do, to have this kid resign over -- over this?" Francis testified he asked Hutchison.
Hutchison, in fact, faced internal pressure to dump Criss immediately. In the wake of the Houston Post report, Deputy Treasurer Bell had told her that he would quit if she didn't fire Criss. Under that threat, Bell later testified, Hutchison pledged to get rid of her assistant. Ultimately, Criss resigned his job effective August 18, 1992.
Once out on the street, Criss began trying to play hardball. The young political aide, according to testimony, expected the treasurer to pay him back -- with either cash or some kind of new position elsewhere -- for the favor of leaving quietly.
When Hutchison failed to come through, Criss stepped up the pressure. He was jobless, and his infant son had serious heart problems that would later prove fatal. Criss worked the phones. "He was threatening a -- not threatening, that's too strong -- but he was stirring, thinking about a lawsuit," Francis testified. Hutchison herself had told Barron, according to his testimony, that "David is causing me problems out there."
That Criss might be a serious problem became evident in January 1993, when he filed an Open Records request seeking Treasury telephone records. It was another sign that he was straying from the fold.
Francis placed a call to Criss' Austin home later that month. Criss tape-recorded the conversation, and later turned the tape over to authorities.
The conversation began with Criss telling Francis the sad details of his son's medical problems.
"It's a tough deal," Francis sympathized. He then quickly shifted gears. "Let me tell you what I am calling about, and I don't want to take away from anything I just said," Francis remarked. "But I heard that you went and made an Open Records request."
Francis advised the young man that turning on Hutchison could jeopardize all his political ambitions. "The last thing in the world that you should be doing is taking on any of our elected officials, and getting the reputation as some sort of an attack dog or something... It just... it will be your kiss of death....'"
But Francis' call apparently didn't make a strong impression. Several weeks later, Francis testified, Senator Bivins, Criss' previous boss, called Francis to advise him that David wanted $250,000 for not going public with the story of his activities at the Treasury. Bivins told him that Criss wanted the Hutchisons to put him through law school, Francis testified.
"I stopped him," Francis testified. "I said, 'Teel, that's just extortion. That is blackmail, and tell him to go straight to the devil.' And I spoke it harder than that." When Criss called up a short time later, Francis testified, "I chewed him out pretty hard." (Criss repeatedly declined to discuss this matter or any other significant details with our reporter.)
Although Criss did not immediately follow through on his threat to go public, the former Treasury aide was a witness Hutchison could not count in her court. On May 12, 1993, he called Francis to advise him that the D.A. had subpoenaed him. He refused to answer questions before the grand jury.
But a few weeks before the Hutchison trial this February, Criss met with Assistant D.A. Darla Davis for a full day of informal discussions. There, the man who had once been the treasurer's closest staff ally told the assistant D.A., according to her notes, that his ambition was to "hurt Hutchison badly politically."
Unlike David Criss, computer wizard Wesley McGehee had little interest in cutthroat politics. A Corpus Christi native, McGehee had started working at the Treasury in 1980, two years after earning an undergraduate degree in business administration and accounting at UT, and quickly buried himself in hard drives and file servers. Though lacking formal training in computers, McGehee became a programmer-analyst -- a computer troubleshooter -- for the Treasury staff two years after joining the agency.
On Friday, April 17, 1992 -- the day Post reporter Selby met with David Criss -- the sound of his beeper interrupted McGehee's lunch break. His supervisor, R.T. Burkett, told him to report to the office of Deputy Treasurer Bell. It was the beginning of McGehee's reluctant role as expediter in what prosecutors describe as Hutchison's attempt at a coverup.
At that first meeting, the computer technician testified, his boss and the deputy treasurer asked a lot of seemingly innocent questions about the security of the Treasury's computer networks. Bell told McGehee that a reporter had acquired some Treasury documents; he asked McGehee to go to the backup tapes and restore whatever documents Criss had already deleted from his computer.
On the following Monday, Bell asked McGehee to begin reviewing log-in records to try to determine who was responsible for the information leak.
By Tuesday, the computer technician had begun to grow concerned about the turn the assignment was taking. That afternoon, as he and Burkett drove back to their office from a meeting with Barron, the scope and nature of the treasurer's "special project" began to dawn on him, he later testified. And he was frightened.
Despite his fears, McGehee felt certain what they were doing was wrong. According to his testimony, he told Burkett, "This is clearly against the law."
Burkett was also uncomfortable, McGehee testified, and instructed his deputy to keep a log of events. "We were breaking the law for sure," McGehee testified. "And we were being asked to and were trying to protect our -- or be able to respond and it wouldn't be our word against theirs."
The two also took another step to make sure they didn't end up as scapegoats for others' misdeeds. They ignored the directives from their superiors to completely erase all the files. Instead, Burkett and McGehee made copies of the material they were purging on separate computer tapes.
For a year after completing their boss' special project, McGehee and Burkett heard little about the allegations that Treasury employees had conducted political business on state time. Meanwhile, Hutchison was headed for the U.S. Senate.
Then, on June 9, 1993, Wesley McGehee paid a visit to investigator Tex Martin in the Travis County D.A.'s office. McGehee's role in the purging of state documents had troubled him for months. He had discussed the matter at length with his parents; he told them the whole thing seemed "shady dealings."
McGehee testified when asked to tell the grand jury why he had come forward, "I was bothered by what I was asked to do. And then as time went on, rather than dissipate, the feeling kind of -- it kept eating at me, what I had done, and bothered me. And then basically as of November of last year, I kind of had a life change where I tried to do the right thing for a change and take responsibility for my action... I waited until after the election to -- strictly not disrupt or -- I wanted the truth to be known, but I didn't want to be accused of political posturing or whatever."
For Earle, McGehee's revelations were a smoking gun. In the aftermath of the Houston Post story, the D.A. had heard murmurs about political work and efforts to conceal it at the Treasury. But Hutchison had characterized it all as a minor matter, an innocent mistake. Earle lacked the sort of evidence he required to justify throwing an investigation of a newly elected U.S. senator into high gear.
McGehee changed all that. One day after the computer technician came in, Earle, fearing the destruction of more documents, launched what became known as a "raid" on the Treasury offices. The D.A. dispatched about a dozen investigators, accompanied by Capitol police officers, to serve subpoenas on a similar number of Treasury employees. The subpoenas required the Treasury staffers to appear before the grand jury with stacks of documents by the end of the day.
McGehee, meanwhile, had located the copy of the deleted files that he had wrapped in paper and taped to the bottom of his desk drawer. But when he loaded the tape into a computer to read it, he discovered that the files had been erased.
There was one last hope: Burkett's backup tape. At 5 p.m. on the day of the raid, Earle hauled Burkett before the grand jury. By 7 p.m., Burkett had nervously acknowledged to the grand jurors that he believed he had the backup tape at home.
"I want those backup tapes if they still exist," Assistant D.A. Claire Dawson-Brown told Burkett. The prosecutor dispatched an investigator to ride with Burkett to his home to search for the missing evidence.
The grand jury recessed for an hour and 40 minutes, until Burkett and the investigator returned -- with the "pizza-box tapes" in hand.
The prosecution of U.S. Senator Kay Bailey Hutchison was plagued with procedural problems from the start.
The press frenzy about the case was allowed to build for months, fed by leaks from Earle's office and aggressive counterattacks from the Hutchison camp. At 9:15 a.m. on September 9, Hutchison appeared before the grand jury. Her ten-minute stay made apparent what, in fact, had happened inside: the U.S. senator had taken the Fifth.
On September 28, the grand jury handed down its indictments. Hutchison faced two felony counts of official misconduct, one misdemeanor count of official misconduct, one felony count of tampering with government documents and one felony count of tampering with evidence. If convicted, she faced a prison sentence of up to 20 years.
Barron was charged with three felony counts: tampering with records, tampering with evidence and official misconduct. Criss was charged with felony official misconduct. Both Criss and Barron faced sentences of up to ten years.
But the road to trial proved bumpy. Defense attorneys soon discovered that one grand juror stood charged with theft, forcing Earle to dismiss the charges and obtain a second set of indictments on December 8 from a fresh grand jury.
As the first indictments loomed, John Dowd, Hutchison's Washington-based attorney, sought to play ball with the D.A.'s office. In a September 14, 1993 letter to prosecutors, he noted that Hutchison had repaid the state a total of $10,818.67 in expenses and vacation time. Dowd noted that such a sum could buy the state plenty of goods and services, and went on to cite examples: 569 hours of work from an employee who earned $19 an hour; 54,093 photocopies at 20 cents a page; or 540,934 minutes of state-owned disk memory at two cents a minute.
But after the indictments, Hutchison shucked Dowd -- as well as her initial strategy -- and replaced him with DeGuerin. She embraced the posture that it was all the product of a Democratic political conspiracy -- though, in reality, her critical accusers were either Republicans or apolitical government bureaucrats.
The senator's camp also offered the "everybody-else-does-it" theory as part of her extensive public self-defense. What had she done that every other elected official didn't do?
She noted that she had paid her secretaries, Snead and Martha Wolfe, $100 a month from her campaign funds to compensate for the nonstate work they had done. She had installed a separate fax and phone line to use for personal and political matters -- and certainly never forced aides to provide such help. "I have always been careful," she told the Dallas Morning News. "I ask a person if they mind doing personal things for me. If someone does mind, then they have a right to say so."
Always shrewd but never subtle, Hutchison's camp lobbied potential prosecution witnesses to try to keep them on the reservation.
In an October 21, 1993 phone call to Sandra Snead, Ray Hutchison tried to convince her that the charges against his wife were impossibly ambiguous. About the definition of the word "political," the senator's husband said, "I find that's a, you know, universally, it's such a common term that people have different views of what it really means." Hutchison repeatedly pressed Snead for her opinion, but she refused to discuss it. Instead, she recorded the conversation and later played it back for the D.A.
Several months earlier, Hutchison's husband had also telephoned Dallas Republican fundraiser Jeanne Johnson, who had coordinated her efforts with those of David Criss while he was at the Treasury, according to Johnson's grand-jury testimony. Ray had told her that he had looked at the phone records and that "he didn't think I had anything to worry about," Johnson recalled.
During depositions taken in the weeks before the February trial, DeGuerin had foreshadowed his plans to question the seriousness of Hutchison's misdeeds. When Kelly Gilbert, for example, told DeGuerin that she kept a hair brush and hair clip in her state-owned desk drawer, the lawyer quipped, "You know, they indict United States senators for doing that."
As the trial neared, DeGuerin challenged the legality of the seizures in the June 10 raid -- which technically included the "pizza-box tapes." The D.A.'s office had obtained the tapes and much of the other physical evidence in the case with a grand-jury "forthwith" subpoena, instead of a search warrant.
The prosecutors considered the tapes -- and the testimony about how Hutchison had ordered the documents they contained purged -- the linchpin of their case. But Judge Onion refused to rule before trial on whether he would allow the tapes into evidence, prompting the sequence of events that led to Hutchison's dramatic acquittal.
Ronnie Earle subsequently dropped the charges against Barron and Criss, saying it would be unfair to prosecute Hutchison's former subordinates while their boss walked.
It was an extraordinary anticlimax, leaving dramatic confrontations unstaged and fascinating questions unanswered.
Would David Criss -- who had flirted with both sides since the first revelation of Treasury misdeeds -- testify against Hutchison?
How would the angst-plagued computer bureaucrats fare in their showdown against the self-righteous U.S. senator? (On the eve of the trial, Burkett's doctor had advised the D.A. that his patient might have a stroke or nervous breakdown in court.)
Would Senator Hutchison take the stand?
The case against Kay Bailey Hutchison has affected many lives. It has severely damaged Ronnie Earle's political stature. Deputy Treasurer Mike Barron resigned June 22, 1993, and went to work as chief financial officer for the Teacher Retirement System of Texas. John Bell remains at the Treasury, as do R.T. Burkett and Wesley McGehee.
David Criss has entered law school.
Kay Bailey Hutchison, meanwhile, continues in office. With her legal ordeal behind her, she is working hard to win her first six-year term.
"I believe in her mind she thinks she did nothing wrong in this," Bell told the Travis County grand jury. "And she can convince herself of anything."
Whether voters are similarly convinced will remain unanswered until November 8, when Senator Kay Bailey Hutchison will finally face a verdict based on public knowledge of her actions.
Miriam Rozen is a staff writer for the Dallas Observer.