Challenges by defendants in the Atlanta Public Schools test-cheating case to disqualify Superior Court Judge Jerry Baxter should be rejected, Fulton County prosecutors say.
The defense requests are misleading, speculative and were not filed in a timely fashion, prosecutors said in a motion filed this week. Baxter has done nothing that would demonstrate a bias in favor of the state or cause prejudice to the defense, prosecutors said.
The recusal request was first filed April 11 by Benjamin Davis, a lawyer for defendant Tamara Cotman, a former APS regional director. Davis alleged that Baxter had improperly contacted the Georgia Court of Appeals and tried to influence the outcome of a pending pretrial appeal filed by Cotman that seeks to dismiss the case against her on double-jeopardy grounds.
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.
Other APS defendants, including former Superintendent Beverly Hall, have joined in Davis’ motion or filed their own motions seeking to remove Baxter.
Baxter has suspended all proceedings in the case. The recusal motion has been assigned to Fulton Superior Court Judge Shawn LaGrua, who will soon decide whether Baxter should be removed or remain. If Baxter is removed, it could take a new judge months to get up to speed on the massive case.
After the recusal motion was filed, Baxter told The Atlanta Journal-Constitution he called the appeals court clerk but said he was not trying to influence the outcome of Cotman’s appeal. Baxter said summons were about to be sent out for more than 1,000 jurors for the trial that was to begin in May, and he did not want to waste taxpayers’ money.
Baxter said he wants all 13 APS defendants tried together to avoid two lengthy trials and wanted to know whether he should delay the trial if the appeals court was going to take some time considering Cotman’s appeal. In recent hearings, Baxter said he dismissed Cotman’s appeal because he believed it was “frivolous.”
This week, Special Assistant District Attorney John Floyd said Baxter’s actions were understandable.
“Judge Baxter’s desire to handle this case as efficiently as possible … with a single trial, is not evidence of partiality,” Floyd wrote in the prosecution’s motion.
Under Georgia law, Floyd added, recusal motions can only be considered if they are filed no later than five days after a party first learns of the alleged grounds to disqualify the judge. Cotman knew about this matter three weeks before the appeals court issued its April 8 order, Floyd said.
Floyd cited a transcript of what Baxter said in open court during a pretrial hearing in the APS case.
“I am asking the Court of Appeals and pleading with them to expedite this matter because it is of utmost importance that Ms. Cotman be involved in this case,” Baxter said. “And, you know, if they say, well, no, this is not frivolous, you know, judge, you are all wrong about this, then we are going to revisit when we start this trial.”
Baxter recently postponed the start of the APS trial from May until Aug. 11 as Hall undergoes new rounds of treatment for her Stage 4 breast cancer.
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