Photo: KENT D. JOHNSON / AJC
Photo: KENT D. JOHNSON / AJC

NEW FINDINGS: Lawyer in APS cheating appeal wants out; judge scolds him, says no

A public defender representing six former Atlanta educators convicted in the high-profile 2015 cheating case wants to withdraw from the ongoing legal fight.

But the judge rejected his argument and has refused to let him go, and now the defendants want an appeals court to review that decision. The judge said bringing in new attorneys could cost taxpayers “a million dollars.”

It could also add years before the historic, long-running case is resolved once and for all.

Attorney Stephen Scarborough was hired by the public defender’s office in February 2017 to represent six former educators as they seek a new trial after a jury found them guilty of racketeering in a test-cheating scandal that rocked Atlanta Public Schools.

But years after he began the appeal work, Scarborough told a judge he needs to withdraw.

He contends it’s not appropriate to jointly represent all six clients. That’s a conflict of interest, he wrote in court filings, because his loyalty to each client would require him to omit issues he would otherwise raise if he were arguing on behalf of a single defendant.

Fulton County Superior Court Judge Jerry Baxter denied the request, saying he didn’t find the conflict sufficient to require new counsel.

He also scolded Scarborough.

“That’s patently absurd that you would come here two years afterwards and make a motion to withdraw in this case,” said Baxter, according to a court transcript of an Aug. 8 hearing. “What I would like to do is just pull a trapdoor and have some alligators down there is what I would like to do, when you come to this court two and a half years with everybody … waiting.”

Scarborough declined to comment.

He said at the hearing and in court filings that it took him time to review the case, interview people and do legal research. He said the six defendants should not have their cases tied together, and that each of his clients is now requesting the “appointment of conflict-free appellate counsel.”

“I’m probably ethics’ing myself out of a job,” Scarborough said, during the hearing.

On Wednesday, the Fulton court signed paperwork paving the way for the Georgia Court of Appeals to consider reviewing the withdrawal matter before a decision is made to grant a new trial or not.

During the original trial, one of the longest criminal trials in Georgia history, a dozen defendants were tried at the same time, though they did not share attorneys. Eleven former teachers and administrators were convicted of conspiring to cheat on standardized tests by changing students’ answers and receiving bonuses and raises based on the fake scores.

Baxter asked why it took so long during the appeal stage to raise issues regarding individual representation.

“A light bulb didn’t go off in your head when you read that first part of the transcript?” he asked at the hearing.

“The light bulb has always been dimly aware,” Scarborough responded.

He said: “Anybody that had been to law school would have known this was a possible problem. But what I was trying to do was do the job I was hired to do, and it would have been very nice and efficient for the county and the community had that worked out.”

Scarborough previously argued unsuccessfully that Baxter, who presided over the trial, should recuse himself from handling the motion for a new trial.

Trying to change defense attorneys is “a brilliant strategy to delay” the case, said prosecuting attorney Linda Dunikoski with the Fulton County District Attorney’s Office, according to the hearing transcript.

She disputed that there could be a conflict in representing the six clients because at the trial “everybody said no cheating actually took place.” Dunikoski said that makes it hard to argue that “someone else did it.”

The district attorney’s office declined to comment.

At the hearing, Dunikoski said: “This was purposefully done for delay so that we could get here today and go, ‘We are going to see if the state will finally give up.’ The state is not going to give up.”

Baxter questioned how much more time and money it will take to resolve the case if new attorneys are hired and the appeals process has to start over. Scarborough told the court he is paid $80,000 a year, plus benefits, to work on the case.

The judge estimated it could take six new attorneys another two to three years and exceed $1 million to pay them.

During the hearing earlier this month, Baxter also requested a detailed report on the finances of each client receiving representation from the public defender’s office based on inability to pay.

The six clients are: Diane Buckner-Webb and Shani Robinson, both former Dunbar Elementary teachers; Sharon Davis-Williams and Michael Pitts, both former school reform team executive directors; Theresia Copeland, a former Benteen Elementary testing coordinator; and Tabeeka Jordan, a former Deerwood Academy assistant principal.

Another defendant, former Dobbs Elementary principal Dana Evans, also is seeking a new trial and is represented by her own attorney.

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