A Fulton County judge said Wednesday he will give an appeals court a chance to decide whether there are problems with the Atlanta Public Schools test-cheating indictment before the case goes to trial.
One issue will be whether then-Gov. Sonny Perdue had the authority to appoint the special investigators who uncovered test cheating at APS schools and whose interviews of school employees are being used as evidence by prosecutors.
Superior Court Judge Jerry Baxter heard about seven hours of arguments Wednesday by defense attorneys who had filed motions seeking to dismiss the 90-page indictment in its entirety or some of its 65 counts. Baxter said he would issue rulings on the motions early next week and would allow defense attorneys to ask the Georgia Court of Appeals if it wants to consider some of their challenges.
“If this is fatally flawed, I want to know it sooner rather than later,” Baxter said, referring to the indictment.
The indictment accuses 35 APS administrators and educators of participating in a racketeering conspiracy to inflate standardized test scores. The defendants, all of whom have pleaded not guilty, are also accused of influencing witnesses, theft by taking, false swearing and giving false statements and writings.
David Bailey, a lawyer representing former APS Superintendent Beverly Hall, contended a 1943 law relied upon by Perdue to appoint his special investigators gave him no such authority to do so. In July 2011, those investigators — Mike Bowers, Bob Wilson and Richard Hyde — identified 178 educators as being involved in cheating.
The statute used by Perdue only allows the governor to investigate the state attorney general or the Law Department, not a school system such as APS, Bailey said.
The attorney noted that Hall faces one count of false swearing when she allegedly gave a false statement to the special investigators in May 2011. Several other defendants face similar charges.
“The indictment is the product of an unlawful investigation,” Bailey said.
Special Assistant District Attorney John Floyd disagreed. A plain reading of the law gives both the governor and the General Assembly the authority to launch investigations, he said.
“Do you think the governor has an unbridled right to investigate anything he wants to?” Baxter asked.
That’s what the law says, Floyd said. “It is abundantly clear the governor and the General Assembly may investigate.”
Baxter said he was inclined to deny Hall’s motion, but he said he would allow his ruling to be appealed. If the appeals court takes the case and rules in Hall’s favor, the judge said, “there are going to be serious problems” with the prosecution’s case.
Baxter indicated he also may allow the appeals court to decide if it wants to consider a challenge that contends prosecutors improperly used compelled statements when deciding how to investigate and make charges in the case.
Attorney Brian Steel, who represents Lucious Brown, the former principal at Kennedy Middle School, said APS told employees that if they did not cooperate with the special investigation they would face termination. The U.S. Supreme Court has ruled statements given by government employees under such conditions cannot be used against them in a prosecution.
Baxter initially said he would not consider the motion. But he later relented and scheduled a hearing for Monday in which all three special investigators are expected to testify.
“It’s my feeling this is very serious,” Baxter said. “It may affect the whole case.”
Baxter will have to decide what issues can be appealed before trial. It is then in the appeals court’s discretion whether to hear them or not.
If it takes the appeal, the court would not be expected to issue a ruling for several months, setting back the trial, which Baxter has scheduled for May 2014. If the court declines to hear the pretrial appeal, the case would proceed as scheduled.
The Atlanta Journal-Constitution’s team of reporters broke the story about suspicious standardized test scores and possible cheating in Atlanta Public Schools in 2008. To track the APS cheating scandal, including a timeline, go to www.myajc.com/s/news/special-reports/school-test-scores/TT .
The story so far
Previously: Thirty-five former Atlanta Public Schools teachers and administrators face racketeering, theft and other charges based on accusations that they inflated standardized test scores to meet academic targets and receive bonus money. All have pleaded not guilty. A trial date has been set for May 5.
The latest: On Wednesday, Fulton County Superior Court Judge Jerry Baxter heard arguments on motions by lawyers representing the APS defendants to dismiss the indictment.
What’s next: Baxter has scheduled more hearings for Monday, which is also when he plans to issue rulings on the dismissal motions.