What happens if birth interferes with APS trial?

For a brief moment, defense attorney Annette Greene was thrilled with the news her client was six weeks pregnant.

Then came dread.

It would add one more complication to the Atlanta Public Schools cheating trial, after weeks of testimony, about 130 witnesses and numerous glitches.

Shani Robinson, Greene’s client, is a former teacher charged with racketeering and making false statements and writings during the investigation into suspected cheating.

And the fear is Robinson will go into labor, causing a delay that will drag out the case even more.

Robinson and 11 other former educators are accused of conspiring to correct students’ answers on 2009 Criterion-Referenced Competency Tests. Fulton County prosecutors say teachers, principals and administrators worked together to change students’ test answer sheets to ensure Atlanta schools showed improvements mandated by former Superintendent Beverly Hall. Hall has been a key figure in testimony, but isn’t part of this trial herself because of her Stage IV breast cancer. She is to be tried separately if her health improves.

Earlier this month, Fulton County Superior Court Judge Jerry Baxter let former Dunbar Elementary School teacher Pamela Cleveland skip court for one day to attend a funeral. Cleveland first assured the judge she was temporarily waiving her right to be in the courtroom.

Robinson’s situation is not as simple.

The prosecution wrapped up Wednesday, exactly six months to the day after jury selection began. The trial will still take many more weeks. About 130 witnesses had been called by the time the prosecution rested and almost 1,500 pieces of evidence had been submitted.

Jury deliberations are likely to be lengthy. Each defendant also is charged with racketeering and other felonies.

The jurors will have to discuss the testimony of hundreds of witnesses and review tens of thousands of pages of documents and reach unanimous decisions on each of the 12. The trial could go well into April.

So what happens if Robinson, a former Dunbar Elementary School teacher due to give birth in mid-April, goes into labor before the trial is over? She is constitutionally entitled to be present during her entire trial.

Former South Georgia district attorney Ken Hodges said options for the trial are limited if Robinson goes into labor.

"But there are options," Hodges said. "The first would be for the defense team to consent to her being tried in absentia. My guess is she (Robinson) would not agree to that."

Georgia State University law professor Russell Covey said, “There’s not a lot of precedent on this particular issue that I could find, nor does there seem to be any established procedure that Georgia courts follow in such situations.”

Robinson’s attorney Greene said they have not talked about her recommendation if Robinson goes into labor. “We’re taking it day by day,” she said.

Greene said her “worst case scenario” would be that jurors had started deliberations by the time Robinson’s baby comes.

But there’s yet another scenario that Greene didn’t want to discuss.

Former DeKalb County prosecutor John Petrey said the judge could consider a hiatus that would apply to all 12 defendants if Robinson’s baby comes before testimony has been completed. Baxter has been adamant about keeping the trial moving, so it seems unlikely he would agree to an unlimited delay.

If the judge agrees to a hiatus, how long would it last?

The standard maternity leave is six weeks but many women take longer, Petrey said. The baby’s health and needs and who can care for the newborn during court hours also would have to be considered.

Baxter most likely will declare a mistrial for Robinson only and retry her later, some legal experts said.

“If I were the judge, I would sever her and declare a mistrial,” Petrey said. “If that happens, Robinson would benefit from knowing what happened to her co-defendants and then she could decide if she wants to go before a jury or plead guilty to a lesser charge.”