Fulton County prosecutors have described the Atlanta Public Schools test-cheating scandal as a “cleverly disguised conspiracy.”
But was it also a racketeering conspiracy?
Sometime next year, a Fulton County jury must decide that. The trial against 12 former APS educators, which began with jury selection in August, recessed for the week of Thanksgiving. But it still has months to go.
Criminal defense lawyers following the case have predicted it will be difficult for prosecutors to convince jurors that schoolteachers were racketeers.
One of the defendants facing a racketeering charge is Dessa Curb, once a special education teacher at Dobbs Elementary School. If she did in fact tamper with her students’ standardized tests, she did an abysmal job of it.
According to testimony, Curb gave the 2009 Criterion Referenced Competency Test to 13 students, each of whom took tests for three subjects: reading, English language arts and math. Of those combined 39 test subjects, students met expectations on only four of them; the rest failed.
Shortly after the indictment, Atlanta lawyer Bruce Harvey, who represented a principal charged in the cheating scandal, famously declared, “This is more mouseketeering than racketeering.” His client later pleaded guilty to reduced charges.
The Racketeer Influenced and Corrupt Organizations Act, or RICO, was passed by Congress in 1970 to combat organized crime and other corruption. A decade later, Georgia enacted its own version. In past years, state prosecutors have obtained RICO indictments against all manner of alleged conspiracies, including street gangs, members of an assisted suicide network and numerous public officials.
RICO is used to protect legal enterprises from being used in illegal activity. In the case now on trial, the enterprise is the Atlanta school system.
Jerry Froelich, a criminal defense attorney not involved in the case, said he thinks it will be hard for jurors to convict the educators of racketeering because there was no common agreement among all the defendants.
“These people didn’t all get together, sit down and agree to do this,” Froelich said. “There were pockets here, pockets there. And there were individuals who made their own decisions, for whatever reason.”
But prosecutors have said that not all of the participants in a racketeering conspiracy have to know each other.
“You don’t under RICO have to have a formal sit-down dinner meeting where you eat spaghetti,” lead prosecutor Fani Willis told jurors in her opening statement.
“You don’t have to agree,” she added. “But what you do have to do is all be doing the same thing for the same purpose. You all have to be working towards that same goal. In this case, the goal — inflate test scores illegally.”
In the initial indictment, prosecutors alleged that 35 defendants, along with non-indicted co-conspirators, unlawfully conspired to acquire “U.S. currency” — bonus money — through a pattern of racketeering activity. This activity included erasing students’ answers and changing them from wrong to right, lying about doing it, influencing witnesses, obstructing investigations and certifying standardized tests when it was known that cheating had occurred.
The bonuses were given to the entire staff of a school that met an APS target, which required certain numbers of students to meet and exceed expectations on the CRCT.
Last week, defense attorneys tried to knock down the racketeering charge by showing jurors that the bonus money was not, as the indictment said, the motivating factor behind the test-cheating.
This occurred after a key prosecution witness testified that the unrealistic targets installed by former Superintendent Beverly Hall was the primary impetus behind the cheating scandal. Bob Wilson, one of the governor’s special investigators, testified that Hall’s threat to oust principals whose schools failed to meet the ever-rising targets put intense pressure on everyone involved.
Some of these educators were single moms who could not afford to lose their jobs. For this reason, the bonus money had little to do with test-cheating, he testified.
During cross-examation, defense attorney Ben Davis, who represents former Student Reform Team executive director Tamara Cotman, seized on that testimony. He pulled out the indictment and then put the page with the racketeering charge on a projector so jurors could see it on a large screen.
He had Wilson read aloud the passage that referred to the bonus money. But it didn’t take long for Wilson to figure out where Davis was headed.
The bonus money, Wilson said, “was some level of incentive, but it paled in comparison … to the overwhelming pressure of the targets set by the district. It was part (of the reason), but it was a little part.”
Wilson then added, “I don’t know of a single person who gave their (bonus) money back.”
All of the defendants, except for Cotman, face charges other than racketeering, such as influencing witnesses, theft for taking bonus money they were not entitled to receive and making false statements. These are all felonies that can carry penalties of up to five years in prison.
But a racketeering conviction greatly ratchets up the exposure of potential punishment. Under Georgia law, it allows for a sentence of up to 20 years in prison. And since the massive indictment was handed up in March 2013, it has hung over the defendants like a sledgehammer.
It has coaxed the guilty pleas of 21 other former educators indicted in the scandal. All pleaded guilty to reduced charges and received sentences of probation.
Jurors rarely know the potential sentence facing the defendants on trial. But that is not the case with the APS test-cheating trial.
Some of the defendants who pleaded guilty have already testified as prosecution witnesses, and their plea agreements, which include the potential punishment they faced, have been shown to the jury.
The fact that jurors now know the defendants face up to 20 years in prison for the RICO charge could influence their deliberations, Atlanta attorney Jeff Brickman said.
“Jurors could now be thinking, ‘Oh my God, if we convict they could get that sentence,’” said Brickman, a former DeKalb County district attorney.
When testimony finally concludes, Fulton County Superior Court Judge Jerry Baxter will instruct jurors not to consider possible punishment when they begin deliberations, Brickman said.
“But you can’t unring the bell,” he said. “They’ll certainly consider it. Even if they can’t discuss it during deliberations, it will certainly be in the back of their minds.”
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Credit: Stephen B. Morton for The Atlanta Journal Constitution