Fulton County judge refuses to dismiss Atlanta test-cheating case

A Fulton County judge on Friday refused to dismiss the Atlanta Public Schools racketeering indictment, appearing to change his mind on a hotly contested pretrial issue and handing prosecutors a much-needed victory.

In a nine-page ruling, Superior Court Judge Jerry Baxter rejected claims by defense attorneys who contended the massive indictment was poisoned by coerced statements given by the APS defendants to special investigators and GBI agents.

Baxter said he will allow his decision to be appealed before trial. It is a surprising development given that Baxter, at the conclusion of hearings more than a week ago, indicated he would find that the statements by APS employees to investigators had been compelled because the employees had been under the threat of losing their jobs. As one Fulton prosecutor argued otherwise, Baxter interjected, “I don’t know if you can make a silk purse out of a sow’s ear.”

But before leaving the bench on June 18, Baxter reserved making a final decision. On Friday, he denied motions to dismiss the 90-page indictment that had been joined by all 35 defendants. At the same time, Baxter said he will still give individual defendants the chance, by putting up additional evidence, to suppress the statements they gave to investigators.

In a statement, Fulton District Attorney Paul Howard responded: “After reading Judge Baxter’s order denying the defendants’ motion to dismiss the indictment, I believe that justice for our children is a little bit closer.”

» COMPLETE COVERAGE:Interactives, stories, photos and more on our AJC Investigates: Cheating Our Children page

Atlanta lawyer Brian Steel, who represents former Kennedy Middle School principal Lucious Brown and who led the challenge to dismiss the indictment, said he had yet to fully digest the decision. “I will employ every legal avenue available to continue to fight for Dr. Brown’s liberty,” he said.

The 90-page indictment, handed up by the grand jury on March 29, accuses the former APS administrators and educators of conspiring to make the school district look better than it was by cheating on federally mandated tests. It accused former APS Superintendent Beverly Hall of leading a corrupt school system and using students’ inflated test scores to earn bonuses.

All defendants have pleaded not guilty. Other charges include false statements, false swearing, theft by taking and influencing witnesses.

The motion to dismiss the indictment contended Fulton prosecutors were in violation of a 1967 U.S. Supreme Court decision that said compelled statements made by government employees could not be used against them in a criminal prosecution. In that case, the justices found statements were coerced — and, thus, involuntary — when police officers accused of ticket-fixing were told they would be fired if they did not cooperate with investigators.

Beginning in August 2010, after Gov. Sonny Perdue appointed three special investigators to look into test-cheating, Hall sent a series of memos to APS employees telling them they had to provide answers and truthful information to investigators or risk being found insubordinate and face termination.

In the ensuing months, the special investigators and GBI agents, who were brought in to assist with the probe, conducted more than 2,000 interviews of APS employees, including the 35 defendants now under indictment.

Defense attorneys said the statements given by the school officials to investigators were coerced and had tainted the sweeping racketeering indictment.

But Baxter cited testimony from former general counsel Veleter Mazyck who said she had sent an email to all faculty and staff at 54 schools, where tests had a statistically improbable number of answers changed from wrong to right, telling employees that no part of the investigation could infringe upon their constitutional rights. Mazyck also testified that it was never the school system’s policy to fire an educator who invoked his or her Fifth Amendment right against self-incrimination, Baxter noted.

At the time of each defendant’s interviews, Baxter wrote, “there were no expressed threats” that APS officials would lose their jobs unless they provided statements to investigators’ questions.

However, Baxter added, whether any of the defendants subjectively believed they would be fired “remains an open question.”

For this reason, the judge said, he will examine the circumstances surrounding the statements “on an individual defendant-by-defendant basis.” He gave each defendant two weeks from the date of his order to ask for individual hearings and the chance to put up additional evidence in support of trying to suppress any statements they gave investigators.

During last week’s hearings on the motions to dismiss the indictment, none of the 35 APS defendants took the witness stand and testified.

Baxter has scheduled the trial for May 2014 in the massive case, but that date now appears uncertain because of pretrial appeals.

Separately Friday, Baxter denied a defense motion to disqualify the Fulton District Attorney’s Office from prosecuting the case because Howard’s wife worked at an APS school and has been listed as a potential prosecution witness. The judge also denied another motion that contended Perdue lacked the authority to appoint special investigators Mike Bowers, Bob Wilson and Richard Hyde to look into the test-cheating scandal.

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