Judge hears arguments on removing judge in APS test-cheating case

A Fulton Superior Court Judge is expected to rule soon whether to remove the judge overseeing the Atlanta Public Schools test-cheating case.

All 13 defendants have asked for Fulton Superior Court Judge Jerry Baxter to be taken off the case. They claim Baxter improperly tried to influence an appeal of one of his pretrial rulings and then inappropriately defended his actions in the news media.

On Monday, Fulton Superior Court Judge Shawn LaGrua heard arguments. She gave no indication how she would rule. LaGrua was randomly assigned to consider the motions. Baxter has suspended proceedings in the APS case in the meantime.

Whether or not LaGrua orders Baxter removed, the test-cheating trial could be delayed again, beyond the scheduled August date. If a new judge is assigned, it could take him or her months to get up to speed on the complex case. And if LaGrua allows Baxter to remain, the defendants have asked for permission to appeal her decision, which could also delay the trial.

Baxter had already delayed the trial until Aug. 11 so former Superintendent Beverly Hall could receive new rounds of treatment for stage 4 breast cancer.

The request to remove Baxter was first filed April 11 by Benjamin Davis, a lawyer for defendant Tamara Cotman, a former APS regional director. Other APS defendants then joined in Davis’ motion or filed their own motions for a different judge.

Davis alleged that Baxter had improperly contacted the Georgia Court of Appeals and tried to influence the outcome of Cotman’s pretrial appeal, which seeks to dismiss the case against her.

Davis drew his accusations from a Court of Appeals order issued April 8 in which the court denied a prosecution request to dismiss Cotman’s appeal. In that order, the court disclosed that Baxter had made “multiple phone calls” to the court’s clerk urging “quick action” on Cotman’s appeal and the prosecution’s dismissal motion.

Baxter said in interviews with the news media that he did not intend to influence the outcome of the appeal.

Lawyers for Hall have filed their own motions, which say Baxter should be removed because he defended himself in interviews with the news media after the efforts to disqualify him were filed. They cited an interview the judge gave the Daily Report, a legal publication, which quoted Baxter saying that Davis was engaging in “game playing to delay the case.”

The motion also cited a news story about an interview Baxter gave The Atlanta Journal-Constitution, which included the headline “Judge fights removal effort.” In that story, Baxter said he called the appellate court because more than 1,000 prospective jurors were about to be summoned for the APS trial and he wanted to know how long it would take to decide Cotman’s appeal.

“When a newspaper openly interprets a judge as acting in opposition to a motion, a reasonable person might do so as well,” Hall’s lawyers said.

Patrick Longan, who teaches legal ethics at Mercer University’s law school, agreed with the lawyers’ assessment. He said in an affidavit attached to Hall’s motion that Baxter’s actions created the appearance of partiality, so he should be disqualified from the case.

In court Monday, lawyers for the defendants argued that Baxter’s calls to the Court of Appeals and interviews with the media created the appearance of partiality. “We don’t have to show actual personal bias, just that there might be the perception of partiality,” said David Bailey, one of Hall’s lawyers.

Special Assistant District Attorney John Floyd opposed the defense motions, saying Baxter’s actions did not demonstrate bias. He also said any issues raised by Baxter’s actions applied only to Cotman’s case.

“What Judge Baxter has been doing is his job the best way he knows how in one of the most difficult and complicated cases that’s ever come into this court,” Floyd said.