Prosecutors in the massive Atlanta Public Schools racketeering case hope their best evidence will include the statements many of the 34 former educators gave during the investigation of the test-cheating scandal.
But the prospect of whether the defendants’ own words can be used against them came under attack Monday during a court hearing that could decide the strength of the prosecution’s case.
Monday’s pretrial hearing was the first of several scheduled this month that could determine how the high-profile case with 34 defendants will play out. Also in question is whether separate trials for individual defendants will be required. Next week, former APS Superintendent Beverly Hall’s lawyers will try to suppress evidence in the case against her.
Former APS principals Dana Evans and Christopher Waller and ex-assistant principal Gregory Reid are among 34 former APS educators and officials charged with racketeering for conspiring to change answers on Criterion-Referenced Competency Tests so their schools could meet academic standards and receive bonus pay.
Evans, Waller and Reid testified Monday they believed they would be fired if they did not cooperate with the investigation into test cheating on 2009 standardized tests. If educators believed they’d be fired for refusing to answer questions and if that belief is found to be reasonable, then the statements made by those educators and others like them cannot be used in the state’s sweeping racketeering case, defense lawyers said.
Fulton County Superior Court Judge Baxter has set a May 5 trial date. On Monday, he did not issue an immediate ruling on the challenges raised by Evans, Waller and Reid.
Prosecutors have said that some statements given by APS defendants during the investigation were highly incriminating.
Even if the statements are excluded, prosecutors still have independent evidence such as cooperating witnesses and undercover tape recordings they say will help prove their conspiracy case that cheating was going on and educators and administrators tried to cover up.
But Atlanta defense attorney David Wolfe, who is not involved in the case, said if the statements are not allowed it could substantially weaken the prosecution’s case.
“When those kinds of statements come in and offer incriminating overtones, it’s easier to bring a racketeering case together, “ he said.
Next week, Baxter will hear motions by at least seven defendants seeking to sever their cases from their co-defendants.As it stands now, all defendants are to be tried together, a prospect that prompted Baxter to previously speculate the county may need to rent an abandoned grocery store to accommodate everyone.
On Monday, defense attorneys asked Baxter to suppress statements given by their clients to GBI agents and special investigators. On Aug. 10, 2010, the attorneys noted, Hall sent out the first of a series of memos instructing staff to cooperate. Those who refused, the memos said, would be found insubordinate and subject to discipline, up to termination.
Many APS defendants initially gave statements to GBI agents who came to their schools in 2010. Most sat for additional interviews with special investigators the following year.
Evans, a former principal at Dobbs Elementary School, testified that she believed any refusal to cooperate “would probably lead to termination. … My understanding was that there was no choice.”
Waller, a former Parks Middle School principal, agreed.
“You’d be fired if you didn’t cooperate,” he testified, citing Hall’s memos. “… You’d be terminated immediately for insubordination.”
Fulton prosecutors noted that the language in the memos stated that termination was only one possible disciplinary outcome. A reprimand or a suspension could have been alternatives, they suggested.
Evans, Waller and Reid are also among some individual defendants who face other charges, such as giving false statements.
Deputy Assistant District Attorney Christopher Quinn told the judge that even if the defendants statements during the investigation are excluded from the trial, they can still be held liable if they were found to give some false statements.
“It flat out doesn’t apply to people who lie,” Quinn said.
Prosecutors also noted that former APS general counsel Valeter Mazyck notified employees in October 2010 that they could assert their constitutional rights, including the right to counsel.
But attorney Don Samuel, who represents Waller, played Baxter snippets of Waller’s April 18, 2011, interview with the governor’s special investigators. At one point, Waller called the investigation a “witch hunt.” He then invoked his Fifth Amendment privilege to remain silent and not incriminate himself.
Investigators then continued to question Waller, who had his lawyer sitting next to him. And Waller, who later tried once again to invoke his Fifth Amendment privilege, continued giving answers.
Attorney Dorian Murray also played Baxter a recording of Reid’s April 18, 2011, interview with special investigators. Reid had brought an attorney to represent him and when that lawyer interjected during the questioning, one of the special investigators told the lawyer to “hush,” according to the tape recording.
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