Thursday, June 12, 2014

Who Audits the Auditor?

            Some of the most informative and satisfying moments in the follow-up to the extraordinary cheating scandal in El Paso schools actually took place at a meeting in the State Capitol early last year. In a case that featured reports of truancy officers going to homes to keep low-performing refugee kids—desaparecidos as they are called—from going to class, it’s hard to imagine anything that could be more bizarre than what students and teachers already endured, but in Austin all things are possible and legislative hearings can be as strange and unnatural as anything seen in corrupt classrooms.
The principal witness of the House Select Committee on Transparency that day was John Keel, longtime State Auditor. Keel’s testimony was not intended to be about what his office had or—more importantly—had not done after the first reports of scholastic wrongdoing in West Texas. But Democrats on the committee smelled blood and that’s what they got. Keel later described his own testimony during the legislative session as “bob and weave” yet it seemed, really, he sat there and took a beating. The auditor was on the defensive as he described his performance on a number of investigations from cancer research to Gov. Rick Perry’s economic endeavors. The hearing was like watching a young Ali—or a couple of young Alis—against an old George Foreman. First out of the corner was Rep. Trey Martinez-Fischer of San Antonio. The lawmaker asked an apparently innocent question about authority to audit local schools. He connected on his very first punch.
John Keel explained that his office has authority to investigate all state entities—has no authority to look at the workings of cities or counties in Texas—and has statutory review of river authorities (Brazos, Colorado, Red et al) but where, the auditor left unsaid, the politics can be pretty heavy-going. “We do very little work at school districts. It depends on the nature of the money,” Keel told the committee. As if that weren’t explanation enough, which it would turn out not to be, he repeated, “We do very little work on school districts.”
Next at the microphone was Rep. Naomi Gonzalez of El Paso who is actually a product of the schools in question. As the Republican chairman ran interference for Mr. Keel and reminded everyone of the clock’s few remaining minutes Rep. Gonzalez pressed home basically a single question phrased as two: Does the state auditor—you sir, in other words although she put her question in a cordial and businesslike manner—“have the authority to audit a school district?” She asked again, “What exactly are those parameters when you get involved?”
Keel said he would get back to her with a written response, which her office says he never did. “I’d like to go back and check with our general counsel,” he told the committee six years after he was first contacted by the El Paso delegation about corruption in hometown schools. Little matter becauseas in a courtroom—at a committee hearing in the Capitol you usually don’t ask a question for which you don’t already know the answer. It may be why the members are meeting in the first place. They just want to hear you say it.
At the end of the hearing someone threw Mr. Keel an easy one, something he could hit—about his opinion as an experienced state official.
             “It’s a pretty good idea for me,” said the auditor, the state’s chief numbers guy, a CPA described even by his friends as having a personality like stone, “to keep most of my opinions to myself.”



John Keel is old Texas from a well-known fifth-generation-Austinite Irish Roman Catholic family whose members, like the Johnsons and Bushes, have mostly worked in public office.
             For the Keels public service has been, until recently, often on the administrative not elective end. John Keel’s origins are not as well-known as those of his famous cousin former State Rep. Terry Keel who was sheriff in Austin before going to the House of Representatives and eventually becoming Parliamentarian. Running for office after all lays someone naked to the public eye in a way that serving as a high bureaucrat—what the British call a mandarindoes not. It’s said nonetheless that John Keel was brought up alongside Terry, “like wolves,” as a former adversary noted, by Terry’s father, Thomas Keel who was for many years director of the Legislative Budget Board. John learned his numbers early taught by someone, Uncle Tom, who knew how the State of Texas makes money and pays bills. That may be part of the problem—not the State Auditor’s knowledge base but his extended family—there are so many Keels and they are so well-connected which may be why John looked so wary last legislative session, about questions that were both asked—and not asked at all. The undercurrent of the questioning can be described as an effort to understand the Keel family as well as John or Terry. The Keel cousins are “made guys” at the Capitol, an underworld term that also sometimes serves in Austin.
John Keel’s conflicts of interest—in a position as sensitive as state auditor—in a statehouse famous for influence-peddling and questionable deals—are so extensive that it seems almost mean-spirited to single out any one. But if you had to chose one, one fact of life in the affairs of the State of Texas that might explain why the state auditor’s integrity is compromised and why he was probably the wrong guy to expect action from about a scandal that started in El Paso but which might implicate state officials in Austin—it is this:
Suppose, for a moment, the fraud hot-line rings at the State Auditor’s Office.
             Suppose someone is denouncing the way, for example, burial plots are handed out as patronage in Austin—as freebies to the deserving and sometimes-undeserving elites—a claim that has actually been made, repeatedly, about the State Cemetery, a few blocks east of the Capitol, last resting place to Stephen F. Austin, Ann Richards, “Big John” Connally and many other Lone Star heroes and heroines and not a few also-rans. Suppose John Keel got the call. Keel’s office could investigate, it’s certainly within his authority as state auditor, but the Keel family through reservations for the living including two yet-to-be-named spouses has nine burial plots already set aside for themselves, a whole little row in Statesman’s Meadow, more than all the Bushes and Perrys and Richardses combined.
            The Keels are a “made” family too.




Officially, John Keel’s expertise is without parallel. He knows the State of Texas better than most anyone can claim. He worked for former state rep/secretary of state/comptroller/lieutenant governor Bob Bullock way back when, at the Comptroller's Office, when Bullock was in his prime and his game was tightest, which means something even today to Republicans and Democrats alike. It means Keel is good like most of Bullock’s people—although not necessarily good in an ethical or right-versus-wrong sense because that’s not what’s meant when you say someone is “good” at the Capitol.
Keel was an aide to Bullock who was the last patron before Gov. Perry, the last strongman in the state—back in the ‘80s and later when Bullock was president of the Texas Senate, in the roaring 90s, before the old pol met and found common cause with Governor George W. Bush in the waning years of the millennium. John Keel according to who you’re talking to—either was never one of Bullock’s rat-pack drinking-buddy let’s-chase-the-secretary-around-the-desk kind of assistants of which Bob Bullock had quite a few—or he was, yes, very much a party guy, booze and babes, drinking til dawn like many of the rest of the Bullock crowd. There’s no doubt about one thing though: “Keel was a numbers guy,” said a former lobbyist who worked in the Capitol when “Mr. Bullock” ran state government. Bullock respected a good accountant, which John Keel is said to be, because Bullock’s power in government was based on having better numbers than anyone else. Keel was one of “Bullock’s number guys” and that’s saying a lot, good and bad.
Later, still back in the day, while Bullock was lieutenant governor, John Keel became director of the Legislative Budget Board just like his Uncle Thomas. When John Keel was appointed, as Speaker Craddick proudly proclaimed at the time, there had only been four directors of the Legislative Budget Board in history and two of them were named Keel. After Bullock’s death, and after W made the move to D.C., the then-serving state auditor—who had a reputation for “sticking his nose in things that didn’t concern him,” as a high-ranking Democrat explained—angering both D’s and R’s—made the fatal error of criticizing Gov. Rick Perry. A big, big mistake, what can you say? The old auditor was out. John Keel was in. He’s been in ever since. A decade, the last few years, especially the last two or three, have been rough. The questions about how he handles investigations are getting tougher, it seems, as the scandals get worse. John Keel knows the Capitol like no one else. Arguably, he knows the state’s numbers better than anyone else—and he knows when things don’t add up. Yet his audits seem only to confirm what has already been in the newspaperuntil El Paso where his own integrity was placed on the line and his reputation with the power structure in Austin was called openly into question.
When John Keel spoke at the Transparency Committee his remarks were not limited to schools. He was asked about a number of recent investigations/reports by his office. The State Auditor had, for example, gone over the books of the governor’s much-criticized Emerging Technology Fund but had not audited the governor’s much-criticized Texas Enterprise Fund, he said. In the case of the billion-dollar Cancer Prevention and Research Institute of Texas on the day Keel testified CPRIT was getting national headlines for insiderism in grant-awarding. An indictment was coming from the district attorney. Extraordinarily, John Keel explained that his audit of CPRIT was produced without reviewing email, even though email was the original source of revelations of grant-awarding abuse. The auditor said that his own investigation had relied on information provided by the CPRIT Foundation—which has since been closed down by the legislature on the assumption it was serving as a kind of slush fund. 
His appearance before the legislature came at a particularly sensitive time for his family, too. Cousin Terry, head of the Texas Facilities Commission—housekeeper and landlord for state government—was at that moment being roasted in the press for attempts to sell or lease pieces of prime state land in Austin's super-hot real estate market in a process that was described by the daily newspaper as highly non-transparent. The Auditor’s Office’s report issued shortly thereafter ignored concerns raised by legislators and the press and concentrated instead on facility maintenance and costs per square feet of rentals for state office space, which no one really questioned but after that John could say he audited Terry. The Sunset Commission, which also reviews state agency performance, issued a report that was not as family-friendly for the Keels, condemning Terry’s “quick acceptance and use of authority with limited direction, involvement or oversight,” in fact John's report on Terry was not even placed on the auditor’s website until a reporter inquired if John Keel had ever investigated operations at the state agency run by his cousin. An open records request led to a response from both Keels that they have not communicated any time recently by email, private or public.
Responding to a legislator’s question during another meeting—John Keel said he was unaware if top executives of state agencies file financial disclosure reports, an amazing answer from a man who has been in the Capitol for four decades, the last nine years theoretically reviewing conflicts of interest. The Auditor himself does not file a disclosure form with the Ethics Commission. His cousin Terry Keel’s disclosure shows only that he has been buying condos in downtown Austin, at 1801 Lavaca, near the state office complex he was attempting to develop as a state official. But it was John Keel’s handling of the CPRIT Foundation that seemed to draw more interest from legislators—second only to corruption in El Paso schools.
“We do not have the authority to audit private foundations,” John Keel said. “I don’t have the authority to go into that foundation.” But he was actually answering a different question than what was asked: The Auditor may not have the authority to audit a private foundation but he does have the authority to subpoena information—from anyone. 
The State Auditor’s Office maintains a “Special Investigations Unit” that has access to Texas Department of Public Safety files and databases, and can obtain warrants and subpoenas, none of which John Keel appeared to have done at CPRIT where the lieutenant governor, state comptroller and attorney general were all on the governing board. “We require access to do our job,” Keel explained to legislators, as if the only compliance he can request is voluntary. In fact the State Auditor’s Office has more confrontational means at its disposal, too. He has authority to conduct criminal probes across the state. The entire bureaucracy of state government—including tens of thousands of public sector workers and billions of dollars of expenditures and revenues—is technically under Keel’s microscope. He can for example examine digital devices and email records and, actually, early last year, in a practice reminiscent of the National Security Agency, Keel’s staff was warned by the Auditor's highest levels to instruct email providers not to inform customers when a warrant is served for records and even to include a subtle threat of prosecution, if the warrant is revealed, which means John Keel can play hardball when he chooses to. “Internet Service Providers are notifying customers when served with a preservation [of evidence] letter, subpoena, or search warrant. To prevent this from happening, include the following language in your preservation letter, subpoena requests, and search warrant applications,” a recent State Auditor’s inner-office edict reads: “’Please do not disclose or notify the user/subscriber of this [preservation letter, subpoena, or search warrant]. Disclosure to the user/subscriber could impede an ongoing criminal investigation or obstruct justice.’” Which begs the question: Why the reluctance to use a big stick at CPRIT or in El Paso?
For example, while originally declining to look at issues at the Texas Education Agency, related to what was happening to thousands of El Paso kids and hundreds of millions of dollars in public funding, Keel’s “Special Investigations Unit” nonetheless found time to do a criminal probe at TEA regarding fraudulent reimbursement for payroll expenses of less than $100,000, like, who cares? And a request by new TEA Commissioner Michael Williams that the Auditor review how TEA’s own investigators missed the corruption in West Texas was first declined by John Keel citing a heavy workload—his office would not be able to get to the audit until 2014, he said in 2012, seven years after he was first informed of problems in El Paso schools. He suggested TEA might instead wish to use a private contractor for the review. While many people believe that what happens in El Paso is historically not of any interest to the rest of the state, the Auditor’s refusal to become involved, over a period of years, despite early and frequent requests by then state Senator Eliot Shapleigh of El Paso and others in and outside of the school district was dogged and intransigent. Keel eventually did the TEA audit and came to the obvious conclusions but only after everyone else.
Senator Shapleigh wrote these words to John Keel in a letter in August 2007: “I am concerned school district funds and other state resources may have been misused.” That kind of language from a member of the Texas Senate is usually enough to get even the rustiest wheels of the bureaucracy turning. Not so with the Auditor’s machine. Keel’s reply: “The State Auditor’s Office has been monitoring the FBI investigation and relating press stories for a number of months.” Keel said eventually that he had completed an investigation of EPISD, the report of which El Paso officials say they have never seen. Four years after that the auditor reported that his “Special Investigations Unit” did a “preliminary” audit of El Paso Independent School District that, likewise, appears to have never seen light of day. Why? The answer may be, once again, John Keel has a big family, with powerful friends.
With a high proportion of immigrant schoolchildren the State of Texas seems to be particularly susceptible to skewed populations of test-takers, although there’s no reason to believe bad practices are limited to within our borders. No Child Left Behind was born here so to speak and it makes sense that it was first in crisis here as well, a member of the El Paso delegation noting that there was even a website, intended for school administrators, devoted to gaming what became the national achievement test system. Legislators from other parts of the state who thought the cheating was an El Paso-only problem are said to have reconsidered. “School districts are a big business,” said the West Texas lawmaker, speaking of administrators’ bonuses that have been tied to district performance on achievement tests. In a presidential campaign Gov. Perry’s economic “miracle” will bring kudos from many—while his stewardship of public education will be fair game to others. That’s a danger because the money trail from El Paso leads to Austin. Everything leads to Austin. Looking behind the scenes at the test itself, its administrators and “Big Education,” or “Big Testing” means one company—the prime contractor—Pearson, which has brought private contracting to public education the same way Blackwater brought private enterprise to national defense. Once you get to Pearson it’s a short trip—it seems—to the Capitol.
“You have to know what it was like then,” say those who were there then, in Austin, back when the testing craze first hit more than a decade ago. This was the era after George W. Bush had left for Washington with only two policy programs in his pocket, one foreign and one domestic: to invade Iraq and to institute No Child Left Behind as his signature homeland policy initiative. At that time back in Austin, Gov. Perry put in a management team defined by two individuals, legislative director Patricia Shipton and chief of staff Mike Toomey, who had been Perry’s roommate in Austin when both men were serving on the Appropriations Committee.
You may have heard Mike Toomey's name recently as a press whipping boy and the face of “crony capitalism” in Austin when Gov. Perry made his first aborted run for president. Look back—and then fast forward from the beginnings of No Child Left behind and both Toomey and Shipton have become lobbyists, Shipton, indeed, became Pearson’s lobbyist at the Texas Capitol. Fast forward again, to early last year as the legislative session began: Anger—from both Democrats and Republicans—that Pearson seemed to be getting preferential treatment from the state. Democrats were incensed that Sandy Kress, the former Dallas schools administrator who “invented” No Child Left Behind, before W adopted it, and who has become a Pearson hired gun, was appointed by Gov. Perry to serve on boards related to education standards even though Kress has a proprietary conflict of interest by working for Pearson. There’s more. Pearson seemed to have an unnatural relationship with the State of Texas. Which led—actually—belatedlyto a state auditor’s report last year.
             John Keel's audit examined the Texas Education Agency’s relationship with Pearson and had three major findings: 
             One, that Pearson’s contract to provide state standardized achievement tests (worth almost a half billion dollars) had been awarded even though Pearson was not the lowest bidder. Two, that TEA had allowed Pearson itself to decide how much money the company would not receive for failing to meet performance standards, in other words if Pearson did not achieve contracted-for results, Pearson management not the TEA would decide how much money to penalize the company. 
            Either of these findings alone might smell to most auditors like a sweetheart deal, yet John Keel thought otherwise. The opening sentence of his audit reads: “The Texas Education Agency complied with most requirements related to . . . its $462 million contract with NCS Pearson Inc.” The third of the findings was actually the bombshell. TEA itself added a clause to the Pearson contract allowing former TEA staff involved in the Pearson contract to leave TEA and go to work for Pearson. Specifically. That makes for a pretty sweet deal—for both Pearson and the right state employees—a kind of revolving door written into the contract between the regulators and private business, clearly frowned on by watchdogs. Indeed, former Sen. Shapleigh had urged Keel to subpoena bank records of selected TEA employees to see if any had received money from El Paso in exchange for turning a blind eye to manipulation of test scores. The senator was trying to establish the vital monetary connection between wrongdoing in El Paso and bureaucrats in Austin. Keel declined then—and apparently did not take the next step last year in his Pearson audit, either. There may be a simple reason why. Family relationships—once again—got in the way.
John Keel’s wife Lara is a lobbyist. Her partner at the Texas Lobby Group is Mike Toomey, the governor’s former roommate—former chief of staff—present best friend and major campaign supporter. Far from being an embarrassment—as a conflict of interest—Lara Keel’s marriage to the auditor has been used to promote Toomey’s company as in website headlines like: “Wife of State Auditor John Keel.” You can’t get much more direct about influence-peddling than that. Lara Keel is literally sleeping with the auditor. Or, better, the state auditor is sleeping with the lobby. And it’s apparently a successful lure to clients. Mrs. Keel has been named the number one female lobbyist at the Texas Capitol for the last few years, while Toomey is usually in the running as number one guy.
Among Lara Keel’s clients include companies doing business with the state—like the Corrections Corporation of America, a major contractor for state prisons. Apparently no one questions whether Mrs. Keel’s business relationship with the governor’s best friend is unseemly—is a conflict of interest—but that may explain why John Keel’s investigations are so tame, or don’t happen at all. That was actually the unspoken question at the House Select Committee on Transparency early last year: Why doesn’t the auditor ever take the next step? Mrs. Keel doesn’t work for Pearson although Toomey’s firm is said to, at one time, have done education lobbying, before John's wife became a partner. That’s not the point. The point is Caesar's wife. “SAO employees (including their immediate family or close family members) who engage in outside employment,” per the State Auditor’s own ethical guidelines, “or in business activities that conduct business with other state agencies can impair their independence and create real or apparent conflicts of interest both for themselves and for the State Auditor’s Office." Keel’s examination of TEA’s Pearson contract found ties between TEA regulators and the company. There have also been ties between former Perry administration officials like Patricia Shipton and Pearson. But the audits didn’t mention those. Like not looking at CPRIT email—or not checking the books at the governor’s Texas Enterprise Fund, John Keel’s audits seem always to stop just short of integrity. A Democratic former legislative aide who has tracked the education debate in Texas noted recently that Rick Perry has no one to blame but Rick Perry if Democrats wrap business-government interests like Pearson around his neck. Because Perry’s tenure and performance are both ample cause for suspicion. 
   Rick Perry has tried so hard to turn the constitutionally-weak Texas governor’s office into a strong governor’s office, and he has been in power so long—almost an entire generation of schoolchildren now know no other governor than the man from Paint Creek—and has taken so many contributions from so many people that if you scratch the surface of practically any major state contract or state policy or state deal you find Rick Perry. His fingers are everywhere and, equally importantly, have been there a long time. That’s the Perry connection. You’ll find it just about everywhere in the Texas Capitol. 
             While Barack Obama’s rise was so sudden that he had practically no political history when he reached high office, Rick Perry has been a major player in Austin for three decades and has left a long, long trail. Perry alone has appointed seven commissioners of the Texas Education Agency since becoming governor in 2001. Robert Scott, who resigned three years ago, under pressure, after presiding over much of the era of good times for Pearson, and almost all of the troubles in El Paso, was Perry’s own education advisor in the governor’s office before going to TEA as an administrator. Watchdog groups have noted that many heavy hitters in the Austin lobby scene once worked for Perry—the revolving door—or are high bureaucrats now, running the apparatus of state government. (Patricia Shipton, who was once Perry’s legislative director, Pearson’s lobbyist and also a lobbyist for the City of El Paso is now “strategic legislative advisor” for Speaker Joe Strauss.) That was how the last strongman in Texas politics, Bob Bullock—John Keel’s former boss—ran things too. You have to spread your most loyal people around to work in other state agencies. A high-ranking Democrat said that it was actually Bullock’s plan that Keel become auditor earlier than he did but Bullock got sick and left office before he could help make the change. So it's said. Then came Rick Perry. And the Keels. It’s an extraordinary family, big, and well-connected.
Among the Keels who have plots set aside in the State Cemetery: Thomas, who is John’s uncle, formerly of the Legislative Budget Board, and Thomas’ wife Patricia, and Lara and John, and of course Terry; Patrick Keel, Terry’s brother, who was appointed by Gov. Perry to the District Court in Austin as a Republican a few years ago and promptly beaten in the general election, and Mary Lou, another sibling who is a district judge in Houston, and two as-yet unnamed spouses. A Keel serving in the special forces was killed in a raid in Afghanistan two years ago. The family has done great public service and certainly Thomas Keel, formerly of the Budget Board, is much-admired as a public servant. But in recent years the Keel ambition has been raw—and well-rewarded.
John’s daughter Kelly's position at the Texas Commission on Environmental Quality serving as a $120,000-a-year director is a potential conflict that could jeopardize any meaningful examination of environmental controls, were the state auditor inclined to do one. (No worry because that's unlikely.) Two other Keels have attempted in recent years to be elected in Austin-area races, one as a county constable and one as a Hays County state rep, both Republicans although the family started, like everyone else in Texas, as Democrats. Lara Keel, John’s wife, sponsors a conservative group that fights for limited government but not limited Keels-in-government.
This is a family that has grown, literally, by its connections, especially to the governor who is known in his own right for extreme connectivity. Perhaps John Keel was right as auditor when he declined to get involved in El Paso. If El Paso did lead to Austin, in the “deeper” sense, John Keel was the wrong guy to make the call. His guardianship of state integrity would have been sorely tested if it wasn’t already, which it was. One of the oldest proverbs in Western government may apply here, actually. It’s a rhetorical question first asked by worried Romans:
Quis custodiet ipsos custodes?”
             Who watches the watchmen? Who guards the guardians?

In the Texas Capitol the question is: Who audits the auditor?


Edited by Jake Schloss
schloss.jake@gmail.com

Tuesday, June 3, 2014

The Designated Negro

Fluttergirl found the grave. In Evergreen Cemetery you might say she found the city’s conscience buried next to a young black man with burns on his scalp and arms.
In the coming weeks and months as her discovery is debated or not—in this town we prefer to look forward not back—please remember Fluttergirl’s role was limited. She’s not political. She just likes to take pictures.
          She also likes graveyards as so many of us do. There’s the quiet and the parklike landscape where you can walk among the headstones and wonder what this person was like, or that one, or how they spent their time aboveground. And how they died, that's always the question, isn't it, presumably that’s what caught her attention at this gravesite: Samuel Holmes’ headstone reading 1938-1960 but no “Rest in Peace.” So she was taking pictures and something, whatever it was caught her eye. Let's begin there.
         In this town we actually like parts of our history well-buried, six or more feet down—at least when remembrance is unpleasant or conflicts with our well-meaning view of ourselves. Texas may be full of rednecks and political trogs but the white majority in the capital city is touchy-feely and completely comfortable with its black and brown neighbors. We live side by side and get along: Some of our best friends are black or Hispanic as the case may be or even white if we are people of color. And if from time to time those people—whoever those people are, although in this town they are usually black—become unmanageable or have too much to drink or too much to smoke, or forget the rules of polite liberal society, the police—one of the best forces in the nation we're told—shoot him or her once or twice with a nine mil or Taser and hustle the offending Negro away on the non-stop to Huntsville, where errant behavior can be remediated by the Texas Department of Criminal Justice, with the understanding that he or she may one day come back to become, once again, a valued member of the Hill Country community. Samuel Holmes did not have that opportunity. Due to various legal oversights you could say. He came back from Huntsville but feet first—upsetting any plans he might’ve had about a return to his wife and the future prospect of white fellowshipintervening were three jolts of 1800 volts of electricity, a permanent kind of behavior modification popular at the time, the first shock wrenching one leg and his chest loose from the leather straps. Oh well. Mistakes are made even in our tolerant community. 
What makes you curious now though, more than five decades later—Fluttergirl didn’t go this far when she was taking pictures although she did ask questions—makes you wonder even today what it was that caused the good people of the city to be so anxious to see Sammy Holmes got his final rest is that the police have since lost his file. The whole thing, yes sir—or madam. Even the microfilm, isn’t that odd? Which is a coincidence because the Travis County District Attorney’s Office which prosecuted Mr. Holmes back in the day—based upon the now missing police file—reported they’ve also mislaid their documentation. Which doesn’t make you suspicious, not in this town, because we’ve always been selective about our history, what we keep and what we discard, deciding what baggage to carry as we move forward, rejecting anything too heavy. Some files we’ve always felt in this town need to disappear. Some things just need to be let go, you could say, to help the healing.
Still, even without the assistance of the police and D.A. who arrested and prosecuted him, it is possible to get an idea of how Samuel Holmes came to meet his Maker at such a young age. He had help. For what follows—the reconstruction not of the crime but of the punishment—we owe a special debt of gratitude to Travis County District Clerk Amalia Rodriguez-Mendoza and her staff in the criminal division who take a different approach to maintaining the record than police or prosecutors, they keep the paperwork; to the Texas State Archives—although they too were reluctant to disclose everything about Mr. Holmes’ trip to the electric chair—and to the Department of Criminal Justice, aka the state prison, which has maintained a history of an important aspect of life and death in the Lone Star State. Backstory: In January 1959 a middle-aged white woman was raped on the west side of town. She never saw her attacker, except his hand, which was placed over her mouth and was black. The victim was a civilian employee of the U.S. Army, a widow alone at home while her roommate was out and who heard a noise while in the shower and, thinking it was her returning roomie, opened the bathroom door, which is basically all the detail you need to know: Wrestled to the ground—informed by her attacker, “I just want a little pussy”—beaten when she refused, the phrase “a little pussy” might tend to implicate a black man, that was the thinking at the time since the p-word was not generally a part of the lexicon of white Biblebelt America, even the sexual offender class, back in the day. 
           The victim relented, keeping her eyes closed while she was “ravished,” as the Texas Court of Criminal Appeals later put it. Samuel Holmes, an African-American dishwasher at Brackenridge Hospital where the victim was taken was arrested two days later, apparently because a car carrying him had been seen in the area, which was not surprising since he lived in the black end of the same segregated neighborhood. Polygraphed by the Texas Department of Public Safety, he was observed during the polygraph by the head of the city homicide squad, Lt. Merle Wells who also investigated sex crimes. Wells would later say in court that he became convinced based only upon the DPS test that the defendant was guilty of other rapes as well, which were never charged and never actually elucidated in any greater detail. Just enough information was given to inflame the white citizenry.
A confession was obtained.


We pick up the case at trial.
Imagine the Travis County Courthouse as it then existed, five decades ago, more, the pale-limestone older building with the jail in the attic that still faces Guadalupe Street and you still may pass today coming from or going to the Capitol. Back in the day that was where the sheriff used to sit out on the grass in a lawn chair chatting with a Texas Ranger: not the more modern Blackwell-Thurman Criminal Justice Center set back in the complex today beside the current 331-bed “detention facility.”
Imagine a courtroom with no AC, it’s May and presumably hot as hell, or getting there, just fans turning overhead, the men wearing white short-sleeved shirts and those (now) hipster-narrow dark ties; the women in below-the-knee summer dresses, with eye glasses that angle out like angel wings. People are certainly smoking and probably chewing tobacco. There would have been a spittoon near the door. This is a pre-P.C. era., John Kennedy running for president and he will win Texas but in Austin the defendant is still referred to as “the boy,” “that boy,” occasionally “Samuel” or “Sammy.” He’s 20 years old and he's a little nervous because he's about to be lynched.
Counsel for the defense is the Hon. Johnnie B. Rogers, former State Senator representing the capital district. He has a hard row to hoe in court.
Representing the State of Texas is District Attorney Les Procter who has a reputation as a bulldog. Police Lt. Wells is on the stand explaining to the defense attorney how the defendant’s confession came about.
         Q. Holmes called for you?
A. Yes, sir.
Q. All right.
A. I went in there, and he said he was ready to tell me. I sat down there, and I told him—
Q. Before you start that, let me ask, all right, you told him what, then when he said he wanted to tell you?
A. That he didn’t have to make a statement. That any statement made by him could be used against him in this trial or trials concerning this offense. That was told him before he ever started. And then after he made the statement and before he signed it, he read it. And then after he signed it—
Q. Let’s don’t get to the statement yet. Then at what point did you tell him that that polygraph test showed that he had committed not only this rape, but eighteen or nineteen others, and that he was a sick boy, and that if he didn’t admit to this one and all those other rape cases, that nobody would ever believe that he was a sick man. Unless he told about these, he couldn’t get any help, because he was sick?
A. The polygraph showed, Johnnie, let me tell you this. The polygraph showed that he was guilty of about four other rapes, and I believe it.
Q. Did you make as thorough an investigation as you possibly could about that?
A. Yes, sir. We took him up there and had the people look at him. There’s been a length of time in there that these things have happened, and the people did not identify him. But on the polygraph it showed that he was actually guilty of it and had guilty knowledge of it.
Q. Now you read this polygraph test? Did you find it to be that yourself?
A. No, that’s what Mr. Wheeler was telling me, and—
Q. Did you bring a list of rapes out there to that operator?
A. I sure did.
Q. Did you have him examine him on every one of those?
A. Yes, sir.
Q. And then you told him on the basis of that that he was guilty of eighteen or nineteen other rapes?
A. No, sir. I never told him any such thing, no, sir.
Q. You never told him any such thing?
A. No, sir. I told him it showed about four or five that he was guilty of.
The testimony is like a bad movie, you couldn't make it up, or you could but nobody would believe it. Then it gets interesting again.
Q. Now, when did you tell him that if he didn’t come on and sign some kind of statement out there, that you were going out there, the police department was going to go out there and take his little boy away from his wife? Or you were going to take his mother away and put her in jail down there?
A. If you think I would tell something like that, Johnnie, you’re badly mistaken. I did not tell the man anything like that.
Q. How long did it take him to give you the statement, Mr. Wells?
A. We put it down on the back of the confession. We started at 7:30 and finished at 8:20.
Q. And he was talking all of that time?
A. He was talking to me in there, yes, sir. I was in the room by myself with him.
Q. You didn’t have anybody taking it down as he told it?
A. I was typing it.
Q. You were typing it.
A. Yes, sir.
         The confession read by the district attorney as, according to Lt. Wells, was set down on a manual typewriter in real time: 
“My name is Samuel Morris Holmes. I live [sic] 1713 West Eleventh Street in Austin, Texas. I am 20 years of age. I was born Feb. 27, 1938 in Austin, Texas. I am married [sic] Lucy Lee Holmes. We live together at 1713 West 11th St. We have one son 18 months old and my wife is about three or four months pregnant at this time. I am employed since November of 1957.
“On Monday, January 19, 1959 I was working at the hospital and a boy there by the name of Ralph Bowser, who is also employed there, had bought him a 1956 Ford and he wanted me to go with him to try it out. We went by the Bargain Corner liquor store at 11th and Red River Sts., and bought a fifth of wine. We then drove around in east Austin and drank this fifth of wine . . . ." They went cruising.
“When he got to the next corner from Enfield Road I told him to stop and let me out. He asked me why and I told him that I needed some money. I started walking back east on this street. I don’t know the name of this street but have been told that it is Summit View. I walked east on this Street until I was almost to Woodlawn when I looked over and I saw a woman on the bed and she looked like she was naked. She was raising her legs up in the air. I went over to the window where this woman was and watched her for awhile. She got up after awhile and went into the bath room. When she went to the bathroom I got a stick and punched a tear in the screen over the window and then I raised the window. . .  I then heard this woman call a name out and then I reached in and turned the light off in the bathroom." The confession sounds just like natural speech, no prompting needed.
"Today, January 31, 1959, while I was at work two officer’s [sic] came and arrested me and brought me out to the DPS where I submitted to a lie dector [sic] test and after it showed I was guilty I gave the above statement which is true and correct to the best of my knowledge. I have read the foregoing statement and it is true and correct to the best of my knowledge. I went to the 11th grade in Anderson High School. This statement consisted of two typed pages. All of the foregoing events happened in Austin, Travis County, Texas. Signed: Samuel Morris Holmes.”






Ignore for a minute that there were no blacks on the jury.
They were in the courtroom audience including members of Holmes’ family and in the jury pool, those who had paid the poll tax to appear on the voter registration rolls. The District Attorney used six challenges to remove any African-Americans from consideration for the jury. According to a prominent local attorney who was in college at the time and remembers the trial, and later went to work for the D.A.’s office, not only would no blacks have been the standard of the era in the city but, “in a capital case it would have been a Tarrytown jury,” in other words not just white but of good means.
Ignore also the use of the death penalty primarily in cases involving black defendants. In the quarter-century prior to Samuel Holmes’ trial three other men from Travis County had been executed, two of them black and one of those also for rape, presumably also of a white woman. Ignore that for the moment, too. A mistake was made in the Holmes trial that actually had nothing to do with choosing the jury or deciding punishment. The defendant claimed his confession was coerced. He was denied rest, or food, left standing for hours, he said, and his family was threatened. That was the issue before the court during most of the trial. How was the amazingly-detailed confession obtained? At one point while Lt. Wells was on the witness stand he was asked to step down and the defendant was brought forward to testify directly about how the confession came about. Not about the crime—but about the interrogation. The question was important because there was no victim identification of the suspect and the only physical evidence was a fingerprint the police said they later obtained from the window through which the attacker entered, only “circumstantial evidence,” as even the judge called it. Instead of leaving the courtroom Lt. Wells took a seat in the audience and listened to the defendant’s testimony about what he, Lt. Wells, was alleged to have done to obtain a confession. Then Wells returned to the witness stand and after hearing the defendant, the lieutenant countered the allegations point by point. Judge Mace Thurman (the Thurman of the Blackwell-Thurman Criminal Justice Center, by the way) trying his first capital case, refused to admit that was a mistake. The prosecution was nonetheless worried enough to take an extraordinary step—a possible first in the annals of Texas criminal law—entering into evidence the sworn statements of three white members of the trial audience that they felt sure Lt. Wells would have testified exactly as he did whether he heard the defendant on the stand or not. Oh well. That issue settled—the jury voted guilty and death as the penalty.
Reports at the time noted that Judge Thurman was pale and shaking as he condemned Samuel Holmes to the electric chair. In his response to Holmes’s later appeal—before the Texas Court of Criminal Appeals—the district attorney noted, “The defendant, a person of the negro race, did not take the stand . . . ” Despite these errors Samuel Holmes spent the better part of the next year-and-a-half in prison awaiting what even he must have known was inevitable. In the run up to the execution the so-called race agitators began to surface. A protest letter from a woman in a small town in Germany arrived—addressed to the governor, University of Texas and “Minister of Justice for Texas”—noting, in German laboriously translated by Gov. Price Daniel’s staff, that the European understanding was that black men in the American South were sentenced to death for rape of white women but white men who raped black women were not so severely punished. That was actually a coincidence. Sammy Holmes' sister was raped by a white man after the Holmes' trial and the white defendant was merely sentenced to prison. A news clipping still attached to the governor’s file on the Holmes file in the State Archives recounts the cases of two white brothers in Texas, one who raped a black girl and was sentenced to twenty-five years and one who raped a white woman and was sentenced to death. The race of the victim was almost as important as the race of the defendant. To receive justice it helped or hurt to be Caucasian, depending on if one was victim or perp, but it was always a disadvantage to be black. Samuel Holmes continued to assert his innocence, at one point saying he would not accept a commutation of his sentence to life—only acquittal would be enough. “I am not afraid,” he told a reporter. “It takes more than the electric chair to scare me,” although that particular bravado soon passed. 
The information that would probably be most revealing about Samuel Holmes for us now, both to understand him as a person and regarding Hill Country society's wish to scapegoat him—of all the material that has not been misplaced by the authorities—is a psychiatric report done by order of the Board of Pardons and Paroles before the decision to deny clemency, a file which is still kept closed today for reasons of alleged confidentiality. When the time came to pay for what he may or may not have done, Samuel Holmes spent the last day with his mother and three sisters. That evening his skull was shaved to allow better contact with the electrodes and he was dressed in the suit he would be buried in. He arrived at the execution chamber with a toothpick in his mouth and a smile on his face, his "attitude," his powerful black male persona palpable even in press reports. According to the prison pastor who walked with him to the chamber the condemned maintained his innocence to the end. He died like a man, as it's said, and as part of the administrative loose ends after the execution the prison warden sent a $25 bill to Travis County for electricity and staff time.




            You may think the point of recounting details of the life and premature death of Samuel Holmes is to address small-town Southern racism—or to reacquaint the public with the evils of an all-white system. The entire legal apparatus used to kill Samuel Holmes was Caucasian: judge, jury, both prosecutors, appellate courts, police and victim. 
             Warden and executioner too. 
             From the moment of his arrest, blacks didn’t enter the picture again until he was loaded into the hearse belonging to King Tears Mortuary, which has traditionally served the city’s black community so well, for the long ride home and eventual burial on the colored side of Evergreen Cemetery. That’s where Fluttergirl appeared on the scene with her camera five decades later. Has anything really changed? That's the question.
            Does a mostly-minority officialdom, which is what we now have in local government, lead to a different outcome for black people than an old-fashioned all-white mostly-male Tarrytown jury? Look at the Travis County judicial system as it exists today:
            Our sheriff is black. The police chief is Hispanic. The district attorney is a self-described progressive who happens to be lesbian. Her chosen successor is an African-American male. The county attorney who prosecutes misdemeanors is Hispanic. The city manager who hires the police chief is black. The deputy city manager who supervises public safety (police & fire) is black. The city attorney who advises these men is a sistah. The present judge and his predecessor in Mace Thurman’s old 147th District Court are both black men—and of the seven criminal district courts in the county three of the judges are women, one judge is Spanish surnamed and two are African-American, it’s hard to imagine more diversity than this in a majority-white Southern city like our own. But what are the outcomes? That is the question. And the answer is: very similar to when Sammy Holmes got strapped into Old Sparky for the ultimate electric ride, back in the day.
            According to Department of Criminal Justice statistics from only a few months ago if you look county by county at prisoners now doing time with the State of Texas36% of those arriving in Huntsville from the capital city are black. Our population is, according to the last census, 9% African-American—yet Travis County has an imprisonment rate of blacks that is four times higher. Compare these outcomes to the two of the largest metropolitan areas in the state—Harris and Dallas counties—which have, respectively, a little more than 50% of their inmates identified by the prison system as black. Harris County—Houston—has an African-American population of 18%, twice as large as our own, and Dallas’s black population is almost 23%, about two and a half times as large as the capital city’s black count. So, in the case of both Dallas and Houston—which do not claim to be liberal meccas—unlike the Texas capital, which does, both Houston and the Big D are imprisoning blacks at a rate much lower than what’s taking place at the Travis County Courthouse. You feel me?
            The math works out almost perfectly: Dallas imprisons blacks at a rate a little more than twice the Big D’s black population while Houston imprisons blacks at a rate a little less than three times that city’s black population while our own town—World Capital of Live Music, touchy-feely center of the Lone Star State—is putting blacks on the bus to the Big House at a rate four times the capital city’s colored population. No wonder there are practically no niggers left in Austin. So many have relocated to Huntsville.
            Use of the death penalty is also striking. Of the seven people on Death Row from Travis County five are minorities including two blacks, two Hispanics and one “other” who popped a cop at Walmart and has been sentenced to the needle. There would actually be eight condemned Travis County inmates but another black male for whom D.A. Rosemary Lehmberg also sought the ultimate penalty when she was First Assistant committed suicide two years ago awaiting execution. During a comparable time period this city—the liberal mecca, the town that believes itself to be too cool to hate—has almost sentenced as many people to death as the entire federal court system during Barack Obama’s presidency. It seems gratuitous to add that our local school district under a black superintendent and a Hispanic deputy superintendent has been suspending black children at a rate two to three times the black population of the student body. Doubtless, race doesn’t enter the picture in the schools either: it’s all about bad parenting and poor choices by the students themselves. If Samuel Holmes were alive today he would recognize his hometown based upon outcomes like these. Only the skin color of the people in charge would confuse him.
            To understand how this can be—how diversity in leadership does not always mean equality in practice—or in living conditions—or before the law—you have to reach back to the great era of civil rights protest in this country, half a century agomorebeginning about the time the hearse carrying Samuel Holmes returned from Huntsville: a look back, a kind of retrospective like the recent civil rights summit held on the University of Texas campus but not the same players or the same movement really, at all. One famous saying from then also applies now: “To be black is necessary,” to push forward to equality, “but not sufficient.” What that means is there are African-Americans who only give lip service to "the struggle" and who cannot be trusted by their own people because they sell their services to The Man, although no one really says “The Man” anymore except bad screenwriters. Around City Hall, one of these individuals likes to be called “Chief.” 
            Deputy City Manager Michael McDonald has been at City Hall for the last decade or so, after retiring from the police force (he’s a double-dipper, a cop's pension and a $220,000 salary, a sum which may be presumed to influence his policy beliefs) and, during the last few years of questionable performance by local police McDonald has been point man in defending the department not because our force is one of the best, as Chief McDonald tells us, but because it’s in his best interests to say it is. He’s often the guy you see standing behind Mayor Leffingwell or Chief Acevedo when the shit hits the fan in the minority community. Sammy Holmes is dead but how does the system that killed him live on in another guise—with a different skin color, so to speak—Sammy Holme’s own color? The fact that so many people in this city have read To Kill a Mockingbird, by the way, does not mean it can’t happen here. It already has. Before the book was written. 
          Part of the problem is there’s also been an aversion to maintaining the record not just by the local police and D.A. but at the Austin-Travis County History Center as well, which can tell you who was named Miss Bluebonnet in 1960 but like the pigs and prosecutorsand the Texas Board of Pardons and Paroleshas nothing on record about Samuel Holmes. 



            Recently, District Attorney Lehmberg and the misdemeanor prosecutor County Attorney David Escamilla reported they don’t track the defendant’s race in their cases—to determine if the police are presenting an especially high percentage of minority arrests, which they are. 
           That would seem like something any modern prosecutor would want to figure out and can easily assess with a computer program. Is the failure to run the numbers really a mere oversight or because these are stats no one wants to see? Alternatively, Ms. Lehmberg could ask the prison system which is looking at the skin color of who’s getting off the bus in Huntsville. And now—potentially worse of all, a looming change that may have even more dire consequences for minorities in Travis County: Gary Cobb, the African-American assistant prosecutor who serves as the DA’s designated Negro has been anointed Lehmberg's successor as well.
            In a candidate’s forum last year Cobb brushed off calls for a death penalty moratorium at the Austin courthouse. “I can only speak about how we do things at the Travis County D.A.’s office,” he told potential voters. “A moratorium isn’t going to affect us one way or another,” he said to an audience of mostly white women as he outlined the way his office approaches the ultimate penalty. If you watch his comments on YouTube there’s a pause after his remarks, and then applause, and Cobb’s relieved smile as he tells white people what they most want to hear. Assistant D.A. Cobb claimed at the forum that the requirement for conviction in Travis County is not just guilt beyond reasonable doubt but beyond all doubta metaphysical concept that is not often achieved in American courtrooms but, magically, is the standard for our prosecutor’s office. 
             “Because of that I do not support a moratorium in Travis County,” he said, adding that, “There are other places that have issues they need to deal with.” In a sense you can consider Samuel Holmes as the designated Negro of his era. These two men, Gary Cobb and Samuel Holmes, to say nothing of Chief McDonald, actually have a lot in common. Holmes was the black man chosen in 1960, perhaps even at random, to show that white people were still in control in the city. Mr. Cobb and Chief McDonald share pretty much the same job description only the benefits are better and there’s possibility for advancement, which is what the assistant D.A. seeks. Blacks like these guys are still being used for The Man’s purposes, but today it’s considered a good job and has excellent benefits, for those lucky enough to be picked. “There is a group of [white] individuals in the city,” says one high-ranking African-American official, “who think they can get blacks and Hispanics in office, tell them what to do, and then get rid of them when they’re no longer useful.” Which speaks to how the careers of men like Gary Cobb and Chief McDonald are born. The fear is that as the city council moves to district representation in the next election cycle—abandoning the gentleman’s agreement that through the decades has assured black representation on the council in a tame form—the city will suddenly find itself without a black elected official.
            Given what we’ve had recently—and the outcomes we’ve experienced—that may not be a bad thing either.

             Edited by Jake Schloss
   schloss.jake@gmail.com