Lawyers attack APS indictment

Fulton District Attorney Paul Howard said Wednesday his office will “continue to fight to make sure the case is completed and aired to our community and then let the chips fall where they may.”

“It is difficult to understand why after so many public announcements of innocence based upon facts in this case that so much work is now being done to make sure the facts never get to the public,” Howard said. “It is not our intent to hide anything.”

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Hall and 34 others are accused of being part of a racketeering conspiracy that inflated test scores to meet academic targets and receive bonus money. The defendants, all of whom have pleaded not guilty, are also charged with theft, making false statements, false swearing and influencing witnesses.

The Fulton County indictment capped a series of investigations into test-cheating that spanned four years. In July 2011, three investigators appointed by the governor released a report that said unethical behavior infiltrated every level of APS bureaucracy. The investigators — Mike Bowers, Bob Wilson and Richard Hyde — relied upon more than 2,000 interviews of school officials and identified 178 educators of being involved in cheating.

Hall's legal team, led by former U.S. Attorney Richard Deane, contends that prosecutors illegally derived evidence from the governor's special investigation. It was unlawful for former Gov. Sonny Perdue to appoint the investigators initially and for Gov. Nathan Deal to reappoint them after he took office, a motion filed on Hall's behalf said.

And if it was illegal to appoint the investigators, they had no authority to administer oaths when taking testimony, the motion said. One of the four counts against Hall includes allegations that she gave false statements to the governor’s investigators when she was interviewed in May 2011.

State law grants the governor authority to investigate the attorney general or the Department of Law, the motion said. The governor also can launch an investigation of other state departments or offices that do business with the state when the attorney general, after being requested to do so by the governor, refuses to investigate one of those entities, it said.

Because neither of these scenarios apply in the APS case, the special investigators were illegally appointed and had no authority to gather evidence, interview witnesses, serve subpoenas and administer oaths, the motion said. Moreover, “the fruits of that investigation cannot be used to support an indictment.”

But Bowers, a former state attorney general, said the state law relied upon by Perdue says the governor has the same authority and rights to launch an investigation as those granted to the attorney general.

“It was very clear the governor had the power to appoint us to undertake the investigation,” Bowers said in a recent interview.

Hyde, who once worked for Bowers at the AG’s office, agreed. “It doesn’t appear to be a close call,” he said.

Lawyers for Hall and other defendants are also challenging the indictment by accusing prosecutors of improperly using coerced statements to gather evidence and bring charges. This applies to statements given by APS defendants to the governor’s special investigators, the motions say.

The defendants are relying on a 1967 U.S. Supreme Court decision involving New Jersey police officers charged with fixing tickets. The officers had been told if they did not answer questions about the allegations, they could lose their jobs. The officers sat for the interviews and their statements were then used to convict them.

But the U.S. Supreme Court said having the officers decide between losing their livelihood or giving self-incriminating statements was “a choice between the rock and the whirlpool.” The high court reversed their convictions, saying the officers’ statements were involuntary and infected by coercion.

During the governor’s investigation, APS employees were told they could either cooperate or face termination of their employment, according to court records.

Atlanta lawyer Brian Steel, who represents Lucious Brown, the former principal at Kennedy Middle School, said charges should be dismissed if it can be shown that Fulton prosecutors used such coerced statements to bring the indictment.

“If it’s determined that that office relied upon them, it is a tainted investigation,” said Steel, who first raised this issue when Brown was subpoenaed to testify before the special investigators in May 2011.

In another motion, Hall’s attorneys are challenging the composition of the grand jury pool on allegations it does not represent a fair cross-section of Fulton County. The pool of names from which jurors are drawn includes thousands of duplicate entries of residents because some people, for example, used their full middle name for their driver’s licenses but used their middle initial for their voter registration card.

The duplicate entries disproportionately represented white residents, meaning it would be far more likely that a white resident would serve on the grand jury than an African-American resident, the motion said.