AJC, WSB ask that gag on APS defendants be removed

The Atlanta Journal-Constitution and Channel 2 Action News have asked a Fulton County judge to lift a restriction that keeps the defendants in the Atlanta Public Schools test cheating case from speaking publicly.

The restriction applies only to the 35 people accused of crimes but not to their attorneys nor to District Attorney Paul Howard and his staff. Howard required the defendants to agree to silence in exchange for lower bonds.

Typically, such a restriction, known widely as a “gag order,” is issued by a judge, not a district attorney. And they usually apply to all the parties in a case.

Howard should not be allowed to interfere with the defendants in the case right “to defend themselves in the court of public opinion,” said attorney Tom Clyde, who filed the motion on behalf of the the AJC and Channel 2 Action News.

“A person’s First Amendment rights do not go away when they are accused of a crime,” he said. “They have the right to speak themselves, not just through counsel.”

Howard declined to comment. But University of Georgia Law School professor Ron Carlson said the gag order could protect defendants from themselves, as pretrial publicity can sometimes work against the accused. Because of that, many defense attorneys advise their clients not to speak to the media before trial.

“While this is not ideal from a journalist’s point of view … attorneys will be able to talk relatively freely,” Carlson said.

Atlanta Public Schools Superintendent Beverly Hall and 34 others were indicted last month on charges of racketeering and other felonies for allegedly changing test answers from wrong to right and encouraging cheating on standardized tests.

When he decided to announce the indictments at a news conference, Howard invited parents and students, so they could tell reporters of the damage the alleged cheating has done. One parent said her daughter struggled to keep up, yet she scored well on the standardized Criterion-Referenced Competency Tests. That mother said her daughter, now in the ninth grade, was reading at only a fifth-grade level. A student also spoke at the news conference of how she struggled in middle school, even as she did well on the CRCT.

A grand jury recommended millions of dollars in cash bonds for some defendants, but Howard agreed to lesser amounts as long as the defendants — but not their lawyers — agreed not to talk to reporters. Hall, for example, saw her $7.5 million cash bond drop a $200,000 bond with $150,000 0f it secured by her signature.

“I’ve never seen a situation where there is an agreement … to basically put a gag on the defendants,” said Atlanta defense attorney Page Pate.

The defendants, Pate said, were able to avoid spending a few days in jail by agreeing to Howard’s demand of silence. Had they waited on a judge to set bond, the defendants likely would have faced at least brief stints in lock up.

The gag order may have given prosecutors an advantage leading up to trial, Pate said.

“They get to control the discussion. For now.”

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