DA seeks gag orders against APS defense attorneys

As lawyers for 35 Atlanta Public Schools cheating scandal defendants converge on the Fulton County Courthouse this week, District Attorney Paul Howard wants them to walk past members of the news media without discussing the case.

In a recently filed court motion, Howard is asking a judge to impose a gag order on defense attorneys. Already, as a condition of their bonds, the 35 APS defendants cannot talk about the criminal prosecution with members of the news media or the public.

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Superior Court Judge Jerry Baxter will preside over the initial APS hearings. Thursday, he will hear from lawyers who represent more than one APS defendant to determine whether they have any conflicts of interest in their legal representation.

Baxter will hold arraignments Friday during which the defendants will formally enter their pleas, which are expected to be not guilty. It’s possible many defendants will waive appearing at their arraignments and allow their lawyers to enter their pleas.

That same day, Baxter will consider a motion jointly filed by The Atlanta Journal-Constitution and Channel 2 Action News that seeks to strike the gag order that was made a condition of the defendants’ bonds.

The 65-count indictment accuses former Superintendent Beverly Hall and 34 other former APS employees of conspiring to cheat on federally mandated standardized tests.

Howard’s motion was filed April 25 after a number of defense lawyers had spoken out against the indictment on behalf of their clients. Hall’s lead attorney, Richard Deane, had granted a number of news media interviews and professed Hall’s innocence.

Defense attorneys have been “in violation of the spirit, if not the letter of defendants’ consent bonds,” the prosecution’s motion said.

The APS indictment already has received intense media coverage, the motion said. “There have been numerous reports, both written and televised, concerning this case. Additionally, the case is highly charged, in that it involves the victimization of school children and their parents within the Atlanta Public School system.”

There is a “substantial likelihood” that the probability of all parties getting a fair trial will be prejudiced by further statements of defense attorneys to the media, the motion said.

Brian Steel, a lawyer representing former Kennedy Middle School Principal Lucious Brown, called the motion “frivolous,” particularly after the DA’s office held a widely publicized news conference shortly after the grand jury handed up the March 29 indictment.

“One, the prosecution spoke with the media about the case and, two, the bond order just prohibits the accused from speaking to the media — it does not prohibit counsel for the accused from doing that,” Steel said.

Don Samuel, a lawyer representing former Parks Middle School Principal Christopher Waller, said he also opposes the motion.

“It’s a little cynical for the DA’s office to conduct an hourlong, prime-time news conference and then say the defense lawyers can’t talk to the press,” he said. “They had already poisoned the well. I don’t take it seriously.”

Deane said Hall’s legal team is preparing a legal brief to reply to Howard’s motion and declined further comment.

The motion filed by the AJC and WSB-TV said the gag orders against the defendants "are patently unconstitutional."

Orders that restrict speech about litigation can only be supported when there is evidence establishing a serious, imminent threat to the administration of justice and when the orders are narrowly drawn to minimize that threat, the motion said. “No such showing has been made here.”