A Fulton County judge on Monday dissolved an extraordinary order in which he prohibited the news media from reporting a story related to the Atlanta Public Schools test-cheating trial. But the issue wasn’t resolved without an outburst of anger from the bench.
Superior Court Judge Jerry Baxter, who is presiding over the monthslong APS trial, announced his decision during a hastily called hearing Monday morning. The matter involved a prosecution witness who received a threat after testifying at the trial.
Late Friday afternoon, at the request of District Attorney Paul Howard, Baxter signed the "prior restraint" order prohibiting the news media, in particular Fox 5 Atlanta, from reporting on the threat. Higher courts have routinely ruled that prior restraint — which prohibits news outlets from publishing information — is an unconstitutional violation of the First Amendment.
Baxter, acknowledging that he was not familiar with First Amendment law, said he realized he should not have signed the order after reading a legal brief filed over the weekend by Fox 5’s lawyer, Cynthia Counts.
He also acknowledged he had discussed the matter with prosecutors — with no defense attorneys present — and this led to the judge’s angry eruption.
“I promise you, I swear to you this will never happen again,” Baxter told defense attorneys, who had objected that they were not part of the conversation. Judges generally are prohibited from meeting or speaking to one party in a trial if the opposing party isn’t present.
But Scott Smith, an attorney representing former testing coordinator Theresia Copeland, asked Baxter to declare a mistrial because the judge had not included defense attorneys in the conversation.
“(It) may shape our trust in the process,” Smith said. He then told Baxter, “I think you’re potentially a witness in the case.”
Angered, Baxter called Smith a “peacock” who had been “prancing” around the courtroom for the news media.
“I think you’re a grand-stander,” Baxter told Smith. ” … This is your big stand. The record will speak for itself that you have not shown any harm.”
The threat to a witness that prompted the controversy stemmed from testimony last month by Reginal Dukes, a private investigator who was hired by APS to look into misconduct at Parks Middle School. Dukes said he uncovered evidence of test cheating on standardized tests. But when he presented his findings in 2006 to then-Superintendent Beverly Hall, she did not seem overly concerned about it, Dukes testified.
Days after Dukes stepped down from the witness stand, a man left a message on his phone. Hall is sick with cancer and “doesn’t need that publicity,” the man said. If Dukes continued to make such statements, the caller said, “I’m going to personally seek you out.”
On Saturday, Dukes told The Atlanta Journal-Constitution that he informed the District Attorney’s Office about the threat left by the anonymous caller.
“I don’t think there’s anything to it, but you just don’t know,” Dukes said. “It’s being investigated. The District Attorney’s Office is looking into it because I’m a witness.”
After the hearing adjourned and the jury returned to the courtroom, Baxter implored jurors not to follow the case in the news media or talk about it with anyone.
“This applies to talking to your mother, your father, your husband, your wife, your partner, your dog, your best friend,” Baxter said. ” … You have got to tell them that it is so important that you have no outside information about this case.”
Baxter added, “I want to keep y’all pristine and pure.”
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