The prosecution in the Atlanta schools test-cheating case faces a possible setback this week that could be devastating and self-inflicted – a prospect that has veteran lawyers and parents shaking their heads in bewilderment and frustration.
In a ruling expected in the coming days, the judge overseeing the massive case will decide whether APS educators and administrators were coerced into giving statements to special investigators and GBI agents because they were under the threat of losing their jobs. At the close of a lengthy hearing last week, Superior Court Judge Jerry Baxter indicated he was ready to make such a finding.
If it’s later found that Fulton County prosecutors poisoned their case with evidence derived improperly from those statements, the 65-count indictment against 35 APS educators and administrators could collapse.
“The idea that prosecutors didn’t see this coming is mind boggling,” Atlanta defense attorney Steve Sadow said. He said the District Attorney’s Office should have taken steps to prevent prosecutors building the APS case from having access to any coerced statements.
If required to prove its case is not tainted, “I think the prosecution’s burden will be impossible to meet,” Sadow, who is not involved in the APS case, said.
Through a spokeswoman, District Attorney Paul Howard declined to comment.
But during recent court hearings, Deputy District Attorney Fani Willis noted that Fulton prosecutors interviewed students at schools with suspiciously high test scores, while the governor’s special investigators did not.
Parents who have watched the cheating scandal unfold expressed disappointment over the prospect the case could be tossed before a jury trial.
“We need closure,” said Cynthia Briscoe Brown, whose son is a rising senior. “We need to see those who were responsible suffer the consequences of their actions. We teach our children that choices have consequences.”
Abby Martin, who has three children in high school, said she remembers when banners hung in schools recognizing teachers for their students’ achievements on standardized tests – gains that were later shown to be fraudulent.
“If this case gets dismissed, I’m going to be brokenhearted, because at some point I believe there was a conspiracy to cheat at the local level,” Martin said. “It would be a travesty if this case can’t move forward and be tried on the merits.”
The 90-page indictment took Fulton prosecutors almost two years to prepare and present to the grand jury. It accuses the 35 defendants of engaging in a racketeering conspiracy by cheating on federally mandated standardized tests and victimizing thousands of struggling students for years. Other charges include false statements, false swearing, influencing witnesses and theft by taking. All 35 defendants have pleaded not guilty.
The motion to dismiss the indictment relies on a 1967 U.S. Supreme Court ruling, Garrity v. New Jersey, which held that compelled statements given by government employees cannot be used against them in a criminal prosecution.
In that case, police officers accused of fixing tickets had been told if they did not answer questions by investigators, they would lose their jobs. Their statements were involuntary because they were coerced, the high court ruled, throwing out the convictions.
The APS investigation began in earnest in August 2010 when Gov. Sonny Perdue appointed three special investigators to look into allegations of test tampering. They were given three directives: expose what happened, develop evidence that could be used to remove teachers involved with test-cheating and, when appropriate, provide information to local authorities for criminal prosecutions. About 50 GBI agents assisted the investigation.
APS Superintendent Beverly Hall, under instructions from the school board, soon began sending directives to all school employees to cooperate with the investigation, according to court testimony. One memo sent to APS employees on Oct. 26, 2010, and reissued Feb. 3, 2011, said anyone “who fails or refuses to fully cooperate with the special investigators may be subject to formal disciplinary action, including termination.”
Last week, defense attorney Brian Steel, who represents former Kennedy Middle School principal Lucious Brown and led the Garrity challenge, showed Baxter that investigators reminded APS officials about Hall’s memo before witnesses sat for interviews. Steel then argued that Fulton prosecutors used these compelled statements to build their case.
The prosecutors should have shielded themselves from the statements and developed the indictment independently of any evidence derived from the governor’s special investigators, Steel said. “We are confident on this issue and believe Mr. Howard’s office intentionally disregarded these principles and rules of law.”
Covington attorney John L. Strauss, whose 2007 case before the Georgia Supreme Court set an important precedent on the Garrity issue, said the APS indictment could be at “substantial risk.”
“You’ve got all these compelled statements from all these witnesses,” he said. “How can you untangle that mess?”
If Baxter rules that APS defendants gave coerced statements, he can then allow Fulton prosecutors to try to prove those statements did not taint the indictment. Baxter could also allow his Garrity decision to first be appealed to the Georgia Court of Appeals. If the court agrees to hear it, it could take several months before reaching a decision.
During last week’s hearings, Baxter, who has sat as a trial judge for more than 25 years, said he had not dealt with the Garrity issue before the APS case. But as he heard more and more testimony, he expressed increasing concern about the indictment and told prosecutors they were going to have a hard time persuading him to rule in their favor.
“I don’t know if you can make a silk purse out of a sow’s ear,” Baxter told one prosecutor. “We’ve had people threatened at the interviews. … I took an oath to follow the law.”
Bob Wilson, one of the three special investigators, said the governor’s instructions were clear: “Whatever you do, find the truth.”
“We knew about Garrity from the beginning,” said the former DeKalb County district attorney. “It was no surprise for us. What are you going to do, not question people? Of course we’re going to question people.”
The special investigators’ report, which relied upon more than 2,000 interviews of school officials, found that 178 educators participated in test-cheating. It also accused top administrators of destroying or altering complaints about misconduct.
The special investigators did not know how Fulton prosecutors would deal with the Garrity issue, Wilson said. “When the prosecutor gets the case, the prosecutor has to recognize he has a Garrity problem and decide how to proceed with this case without using that statement.”
If he needs to, Howard can seek new indictments of individual APS defendants and try to prove his case with other evidence, Wilson said.
“Am I worried about it?” Wilson asked. “No, because I did my job. I am totally comfortable that we presented the truth. There was cheating on a large scale in the Atlanta Public Schools, and I think we’ve been proven right.”
If the racketeering indictment must ultimately be dismissed, it does not necessarily mean all the APS defendants are off the hook.
At least five defendants, including Hall, the former superintendent, are accused of giving false statements to the governor’s special investigators. The Garrity restriction on using compelled statements does not apply when defendants lie to investigators — even after being told they could lose their job if they didn’t cooperate, Fulton prosecutors have argued.
The indictment alleges that Hall committed “false swearing” when, under oath, she told special investigators on May 18, 2011, that she never received complaints about Parks Middle School or its former principal, and when she said she never met Reginald Dukes, who investigated that school.
Hall’s lawyer, Richard Deane, said last week he believes the entire indictment should be dismissed.
If this happens and the DA’s Office continues to pursue the false swearing charge against Hall, Deane said, “The issue becomes what’s the evidence and how did you get there. They’re going to have the same problem with that as they do with everything else.”
Regardless of the outcome of the criminal case, many of the accused educators have already lost their jobs and teaching certifications.
Atlanta Public Schools held tribunals to fire educators after a 2011 state investigative report named 178 teachers and administrators as being involved in cheating.
Their cases were also forwarded to the Georgia Professional Standards Commission, which recommended that their certifications be revoked or suspended in all but a handful of cases.
While the criminal and PSC processes are separate, evidence from criminal cases could be relevant, said Paul Shaw, the commission’s director of educator ethics.
“Should the criminal courts find the defendants not guilty it may impact the eventual outcome of a PSC case; likewise, a conviction or plea bargain would also influence the eventual outcome of the case,” Shaw said.
Of 185 Atlanta cases brought to the commission, it has recommended that 109 educators have their certificates suspended and that 44 have their certificates revoked. Many of those cases are being appealed.
The commission found no probable cause in six cases, and 26 cases haven’t yet been considered by the commission.
About 114 educators resigned or retired from Atlanta Public Schools, and 38 were terminated or didn’t have their contracts renewed. Twenty-one educators were reinstated, and three cases are still pending.