Thirty-five defendants. Sixty-five counts. A 90-page indictment.
The Atlanta Public Schools test-cheating prosecution, massive in size and scope, will be so unwieldy there is no way it will result in a single trial, say defense attorneys following the case.
“What are you going to do?” asked Atlanta lawyer Michael Trost. “Try it in the Civic Center?”
The behemoth of a case, assigned to Fulton County Superior Court Judge Jerry Baxter, is going to be a challenge for the former prosecutor who has served as a trial judge for more than 25 years.
Because of the nature and severity of the charges, the case is expected to be extremely litigious and played out over many months, if not years.
Most attorneys following the case expect the number of defendants to dwindle over time. Prosecutors could wind up dismissing charges against some of those accused and they could strike deals with some who decide to cooperate and testify against others. Other defendants could also plead guilty to reduced charges to avoid going to trial.
But there won’t be 35 defendants going to trial because it is too unmanageable, Atlanta attorney Bruce Morris said. “There is no way each and every defendant would get a fair trial.”
The indictment handed up Friday charged former APS Superintendent Beverly Hall, Human Resources director Millicent Few, three area superintendents, six testing coordinators, six principals, 14 teachers and others in a racketeering conspiracy. The defendants are also charged with making false statements and writings, influencing witnesses and theft by taking.
Racketeering charges, once frequently used against organized crime, are now brought in a variety of cases. In recent years, prosecutors have filed RICO charges against Atlanta pimps who enslaved young women, the former CEO of Cobb EMC and Clayton County Sheriff Victor Hill. Those convicted of racketeering face longer stays in prison under the parole guidelines, which give some defendants an additional incentive to cut a deal.
To prove the racketeering — or RICO — conspiracy, prosecutors must convince jurors that the defendants agreed on a common objective to violate the law. In this case, they allegedly allowed or caused cheating to occur, reaped the financial benefits from it and then tried to cover it up.
Under the state’s RICO law, an alleged conspirator does not have to know the identities of all the other co-conspirators. But there must be proof of a common agreement shared by all those charged. The so-called “enterprise” in which this occurred, the indictment alleges, was APS.
Among Baxter’s initial concerns will be whether there are potential conflicts of interest for some lawyers who represent multiple defendants in the case. Initial arraignments, where those charged enter not guilty pleas, could be a logistical nightmare, given the number of defendants, their attorneys and members of the news media expected to attend the proceedings.
Baxter will be able to split up defendants into factions, perhaps by the schools they worked for, and allow for separate trials, said Don Samuel, co-counsel for one of the 35 defendants, Parks Middle School principal Christopher Waller.
“Otherwise, we’d be there for a year,” Samuel said, only somewhat exaggerating. “I expect the case to be broken up into bite-sized pieces.”
Attorney Bill Thomas, a former prosecutor, expressed surprise at the size of the case and questioned the wisdom of charging so many people in one indictment.
“One thing is for sure,” he said, “this is not going to be a quick process.”
A looming question is which defendant or defendants will be the first to flip, signing plea deals in exchange for their testimony.
“Prosecutors will hope some will plead guilty and begin cooperating,” said Art Leach, a former federal prosecutor who tried a number of complicated RICO cases. “The first one in the door usually gets the best deal. They’ll be able to help out some defendants more than others, depending on how much they know and how much they can help.”
More than 30 APS teachers previously were granted immunity from the three special investigators appointed by Gov. Sonny Perdue and reappointed by Gov. Nathan Deal to determine whether there had been extensive cheating on the Criterion-Referenced Competency Tests. With the considerable help of up to 60 GBI agents, the investigators — Mike Bowers, Richard Hyde and Bob Wilson — uncovered years of systemic cheating at APS.
Their final report, released in July 2011, depicted a culture that rewarded cheaters, punished whistle-blowers and covered up wrongdoing. It also served as a blueprint for Fulton prosecutors who initiated their own investigation that yielded the 35-count indictment. District Attorney Paul Howard has said his office’s investigation is continuing.
When the governor’s special investigators found teachers willing to cooperate, they offered agreements to grant “immunity from state criminal prosecution for any crimes associated with the 2009 CRCT.” But the documents also said immunity could be revoked if a teacher failed to be truthful or cooperate fully.
Immunity granted to at least two teachers was later revoked after investigators determined the teachers had not been fully cooperative. One of them, Starlette Mitchell, a teacher from Parks Middle School, was among the 35 indicted last week. Mitchell’s attorney, Gerald Griggs, has said his client is not guilty and will fight the charges.
Bowers, a former state attorney general, issued the first immunity agreement to Jacquelyn Parks, a third-grade teacher from Venetian Hills Elementary School. Parks, accompanied by two lawyers, arrived at Bowers’ law office on Oct. 4, 2010, saying she was ready to tell the truth: that she and other teachers had raised students’ test scores by erasing wrong answers and then marking them correctly.
Bowers pulled out a legal pad and a pen and wrote up a three-page immunity agreement by hand, which Parks and her lawyers then signed.
“We did it to move the investigation forward and to find the truth,” Bowers said this week. “That was the first big break.”
Added fellow investigator Hyde, “We would not be where we are today had we not had the tool of immunity. It was very effective in enhancing the truth-seeking process.”
Atlanta defense attorney Steve Sadow said those who were granted immunity should pose a problem for those now under indictment.
“As long as the District Attorney’s Office honors the immunity agreements, I expect that will make them witnesses who will be available to testify,” he said. “That could be very beneficial to the prosecution.”
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