Defender must stay on Atlanta Public Schools cheating case appeal for now, high court rules

A public defender representing six former educators convicted in the Atlanta Public Schools test-cheating scandal must, at least for now, continue representing them for their appeals, the Georgia Supreme Court ruled Tuesday.

Fulton County public defender Stephen Scarborough had told the state high court that he could no longer represent all six clients due to conflicts of interest. But Justice Shawn LaGrua, writing for a unanimous court, said Scarborough’s appeal of Superior Court Judge Jerry Baxter’s decision not to allow Scarborough to withdraw was not the kind of ruling that could be appealed at this time.

An alternative, LaGrua wrote, would be for Scarborough to simply refuse to represent all six defendants and be held in contempt of court. He could do so, she said, if he feels strongly that staying on the case would violate the rules of professional conduct and impinge upon his clients’ right to adequate legal representation.

Scarborough could directly appeal a contempt finding, the court said, adding that “we recognize this avenue for appellate review places the attorney in a very difficult position.”

Scarborough was appointed to represent six educators convicted during the trial, which took several months and concluded in 2015. After working on their case for almost two years, Scarborough said he found himself in an ethically untenable position because his loyalty to each client would require him to omit certain issues on appeal that he would otherwise raise if he represented only a single educator.

The public defender said he even described his predicament to the State Bar of Georgia, which then told him he should not represent all six educators.

After a hearing, Baxter denied Scarborough’s motion to withdraw from the case. Scarborough then appealed that decision, which he was allowed to do under the law, to the state Court of Appeals. The appeals court declined to hear the case.

Scarborough also filed a separate appeal but the state Supreme Court found on Tuesday it was not the type of appeal that can be reviewed at this time. Scarborough must now proceed with the appeals or, as the court suggested, be found in contempt and pursue yet another appeal.

Scarborough’s clients are Diane Buckner-Webb, Theresia Copeland, Sharon Davis-Williams, Tabeeka Jordan, Michael Pitts and Shani Robinson. If they ultimately lose their appeals, Buckner-Webb, Copeland and Robinson face one year in prison; Jordan faces two years; and Davis-Williams and Pitts face three years.

A jury found these six former educators and five others guilty of conspiring to change answers on the 2019 Criterion-Referenced Competency Test in order to meet federal benchmarks, win bonuses and keep their jobs.