A Fulton County judge stunned defense lawyers in the Atlanta Public Schools test-cheating case last month when he denied a hotly contested pretrial motion that threatened the massive racketeering indictment.
It is now up to Georgia’s appellate courts to decide whether they want to review Superior Court Judge Jerry Baxter’s rulings before the case against 35 former APS officials goes to trial. In recently filed pleadings, including one that harshly criticizes Baxter’s decision, lawyers for the APS defendants are asking Georgia’s highest courts to review and then overturn Baxter’s rulings.
One of Baxter’s findings was “a complete and utter farce” with “absolutely no logical foundation,” says a request filed by lawyers representing former Kennedy Middle School principal Lucious Brown and former Parks Middle School principal Christopher Waller. They filed their petition before the Georgia Court of Appeals, which has until mid-August to decide whether to hear the appeal.
Lawyers representing former APS Superintendent Beverly Hall are asking the Georgia Supreme Court to review two of Baxter’s pretrial rulings. The state Supreme Court has until late August to decide whether to hear her appeal.
If both courts decline to hear the appeals, the 65-count racketeering case will proceed toward trial, which Baxter has set for May 2014. During recent hearings, Fulton prosecutors strongly opposed the defendants’ challenges to the indictment.
The indictment accuses the 35 defendants of engaging in a racketeering conspiracy by cheating on federally mandated standardized tests. Other charges include false statements, false swearing, influencing witnesses and theft by taking.
During pretrial hearings, Baxter considered two contentious issues that had a bearing on whether the Fulton District Attorney’s Office could proceed with its prosecution.
One involved the question of whether the APS defendants, when initially interviewed by investigators, gave coerced statements because they had been told they risked losing their jobs if they did not cooperate. The other challenge, raised by Hall, was whether Gov. Sonny Perdue had the authority to appoint the special investigators who uncovered test cheating at APS schools and whose interviews of school employees are being used as evidence by prosecutors.
On June 18, Baxter indicated from the bench he would find that the APS defendants had been coerced into giving statements to investigators. If Baxter were to have made such a finding, he then would have required Fulton prosecutors to prove that their indictment was not improperly tainted by such testimony, a hurdle defense attorneys contended would have been impossible to clear.
But nine days later, Baxter ruled that when APS defendants sat for interviews with the governor’s special investigators and with GBI agents, there were no expressed threats that they would lose their jobs if they failed to cooperate and give truthful answers. APS employees had been told that no part of the investigation would infringe upon their constitutional rights, Baxter noted. He also cited testimony by former APS general counsel Veleter Mazyck, who said no educator who invoked his or her Fifth Amendment right against self-incrimination faced termination.
But the appeal filed by Brown and Waller, and joined by all other defendants, said APS directives were clear: Educators faced possible termination if they did not cooperate with investigators. The law, the lawyers said, is also clear: No statements given under such circumstances can be used in any way in a criminal prosecution.
“The trial court’s factual finding that there was no explicit threat of job loss if (defendants) failed to speak with the investigators is a fantasy not grounded in reality,” the court filing said.
In her petition, Hall told the state Supreme Court that the spotlight on the APS case is bright and that a trial will be complicated, lengthy and expensive. If Baxter’s orders are reversed, Hall’s filing said, “there should be no need for such a trial.”
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