Fulton County Superior Court Judge Jerry Baxter listens to former GA attorney general Mike Bowers as he answers questions on the stand for a second day.

Judge appears ready to rule against APS prosecution

A Fulton County judge on Tuesday indicated he would find that defendants in the Atlanta Public Schools test-cheating scandal gave coerced statements when interviewed by investigators, putting the 65-count indictment against 35 educators and administrators in jeopardy.

At the close of a two-day hearing, Superior Court Judge Jerry Baxter reserved from making a final ruling on the thorny legal issue. But he told prosecutors it appeared to him that defendants had been threatened with the prospect of losing their jobs if they did not cooperate with the investigation.

“I think you can sort of get where I’m headed,” Baxter told prosecutors and defense attorneys.

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

If Baxter finds defendants gave compelled statements to the governor’s special investigators or to GBI agents, Fulton prosecutors will then have to prove that they did not use the statements when preparing their case or presenting it to the grand jury.

This determination would require a lengthy quasi trial before the trial, with prosecutors having to put up evidence to show they obtained the indictment independently of any compelled statements given by APS witnesses. They would also have to show that none of their witnesses that they expected to testify at trial read any of the compelled statements.

“It’s an insurmountable burden for the prosecution to show no use was made whatsoever of all this improperly obtained evidence,” said Atlanta attorney Don Samuel, who represents former Parks Middle School principal Christopher Waller. “It is inconceivable to me that the prosecution will be able to continue to pursue this case.”

The racketeering indictment accuses the administrators and educators of conspiring to cheat on federally mandated standardized tests. The defendants, all of whom have pleaded not guilty, also are charged with making false statements and writings, influencing witnesses and theft by taking.

Baxter indicated that he may first allow his decision on the coerced statements to be appealed to either the Georgia Court of Appeals or the state Supreme Court. Whichever court considers the appeal can either decline or agree to hear it.

If an appeals court overturns his expected decision, Baxter said, “I know how to take instructions.”

Baxter initially set a May 2014 trial date. But if an appellate court agrees to hear the appeal, it would delay the case for several months.

The motion to dismiss the indictment was led by attorney Brian Steel, who represents former Kennedy Middle School principal Lucious Brown, and lawyers for former Superintendent Beverly Hall and Waller filed a similar motion. But as Steel’s arguments appeared to gain traction before Baxter, other defendants began joining in as well.

On Tuesday, attorneys representing 14 of the remaining defendants stood briefly before Baxter and formally joined the motion. Baxter said he would not issue his final ruling until statements given by all 35 defendants to the governor’s special investigators or to GBI agents are entered into the court record.

The motion that now threatens the indictment relies on a 1967 U.S. Supreme Court ruling, Garrity v. New Jersey, that held that compelled statements given by government employees cannot be used against them in a criminal prosecution. In that case, the court ruled, police officers accused of fixing tickets gave coerced statements because they were told if they did not answer questions about the allegations, they could lose their jobs.

In the APS case, school system employees were told shortly after Gov. Sonny Perdue appointed three special investigators to look into test-tampering allegations in August 2010 that they could either cooperate with the investigation or face termination. Later, Perdue ordered the GBI to assist with any investigation of suspected criminal conduct, and Fulton District Attorney Paul Howard made two of the special investigators — Mike Bowers and Bob Wilson — special assistant district attorneys in his office.

On Tuesday, Fulton prosecutors argued that the defendants’ statements were not coerced. Special Assistant District Attorney John Floyd said defendants had been told they could invoke their right to counsel and their right to remain silent and not incriminate themselves without fear of losing their jobs.

Former APS general counsel Veleter Mazyck, called as a prosecution witness, testified that no one was fired for invoking their constitutional rights.

But Steel produced a transcript of an interview his client, Brown, had with the governor’s special investigators on April 19, 2011. After Brown invoked his Fifth Amendment right against self-incrimination, he was told he could be facing problems with the Georgia Professional Standards Commission, which licenses teachers.

Steel also produced an Oct. 26, 2010, directive from Hall to APS employees that told them they had to provide answers and share truthful information to investigators or risk being found insubordinate and face termination. Hall reissued that edict in February 2011.

“This is not a close call,” Steel said.

Baxter said he understood that the first and foremost task of the governor’s special investigators was to get to the truth.

“But the fastest way they thought to get to the truth was to go in like a bull in a china shop,” the judge said. “That’s the way it appears to me.”

Support real journalism. Support local journalism. Subscribe to The Atlanta Journal-Constitution today. See offers.

Your subscription to the Atlanta Journal-Constitution funds in-depth reporting and investigations that keep you informed. Thank you for supporting real journalism.