Prosecutors make final plea in APS case

The educators implicated in the Atlanta Public Schools test-cheating scandal weren’t coerced into giving statements to investigators, so there’s no basis for dismissing the racketeering indictment against them, Fulton County prosecutors argued in motions filed this week.

Superior Court Judge Jerry Baxter is soon expected to decide the contentious issue, which could have a bearing on whether the prosecution against 35 former APS educators and administrators can proceed.

Over the past few weeks, Baxter has overseen lengthy hearings on a motion to dismiss the 90-page indictment. Lawyers for APS educators and administrators say their clients were coerced into giving statements to special investigators and GBI agents because they were under the threat of losing their jobs.

Before adjourning last week, Baxter indicated he would find that APS defendants gave compelled statements. If the judge issues such a ruling, he could then allow that decision to be appealed or give prosecutors the chance to show their case is not improperly tainted by the coerced statements.

The 65-count indictment accuses the 35 defendants, including former Superintendent Beverly Hall, 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. All defendants have pleaded not guilty.

The motion to dismiss the indictment relies on a 1967 U.S. Supreme Court decision, Garrity v. New Jersey, which said that compelled statements given by public officials could not be used against them in a criminal prosecution. In that case, the court found that police officers accused of ticket fixing were pressured into giving statements because they were told they would lose their jobs if they did not answer questions by investigators.

In their motion opposing the dismissal filed Wednesday, and amended on Thursday, Fulton prosecutors contend there has been no Garrity violation in the APS case because it was the school system’s policy not to punish anyone who declined to answer questions by invoking their Fifth Amendment right against self-incrimination.

“There is no direct evidence that any defendant confessed at all, much less that they did so because they feared their employment would be terminated if they remained silent,” the motion said.

The defense’s fundamental premise, the prosecutors’ motion said, is that any statements made by APS employees during the governor’s special investigation into test-cheating was coerced because memos sent by Hall in August and October 2010 required employees to cooperate or risk being found insubordinate and face possible termination.

“This premise is factually unsupported and legally incorrect,” prosecutors said.

The memos were quite different from an edict telling employees they would automatically be fired if they refused to cooperate, because the memos merely state there was a “possibility of discipline, which would cover a range of punishment including discipline far less than termination,” the prosecutors’ motion said.

Former APS general counsel Veleter Mazyck recently testified that she notified employees in October 2010 that the school system would not fire anyone for exercising a constitutional right when questioned by investigators, the motion said. It noted that 13 defendants, including Hall, were interviewed by investigators prior to Mazyck’s notification.

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