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Judge 'seriously concerned' about cheating prosecution

ATLANTA — A Fulton County judge on Monday said he sees possible problems with the racketeering indictment in the Atlanta Public Schools test-cheating case.

"I am seriously concerned about your case," Superior Court Judge Jerry Baxter told prosecutors.

The judge expressed his concerns after listening to hours of arguments and testimony in a hearing that continues today. At issue is whether prosecutors improperly relied upon tainted testimony when obtaining the indictment against 35 former educators and administrators.

Attorney Brian Steel, who represents former Kennedy Middle School principal Lucious Brown, accused prosecutors of using compelled statements when deciding how to investigate and make charges.

The 65-count indictment accuses former APS Superintendent Beverly Hall and 34 other administrators and educators of conspiring to cheat on federally mandated standardized tests. Defendants also are charged with making false statements and writings, influencing witnesses and theft by taking. The Atlanta Journal-Constitution first reported suspicious test scores in 2008, eventually prompting a state investigation that found evidence of widespread test cheating.

In August 2010, after Gov. Sonny Perdue appointed special investigators Mike Bowers, Richard Hyde and Bob Wilson to look into tampering on standardized tests, APS employees were given a directive: Cooperate with investigators or be found insubordinate and face termination.

In 1967, in Garrity v. New Jersey, the U.S. Supreme Court ruled that such "compelled" statements by government employees cannot be used against them in a criminal prosecution. On Monday, defense attorneys representing APS defendants said this ruling also extends to prosecutors who use such statements when obtaining indictments by the grand jury.

"This entire process is so poisoned," said Steel. "The entire indictment must be dismissed."

Prosecutors should not have used any of the compelled testimony in their investigation, he said. Instead, they should have only brought charges based on evidence that was obtained independently of the governor's special investigation.

Baxter, who has so far only heard testimony from witnesses called by the defense, noted this is a racketeering case in which all 35 defendants are accused of being part of a conspiracy. If tainted testimony was given to the grand jury it could affect all defendants, he said.

"The act of one is the act of all," Baxter said.

Baxter suggested the burden may now shift to the prosecution team to convince him the grand jury proceeding was not tainted.

Special Assistant District Attorney John Floyd urged Baxter to refrain from making up his mind on the challenge. The defense has yet to show that any testimony in question was coerced from APS witnesses or that prosecutors used it before the grand jury, he said.

Floyd also noted that none of the three defendants raising the challenge -- Hall, who sat in court listening to the arguments; Brown; and former Parks Middle principal Christopher Waller -- gave incriminating statements to investigators or GBI agents when questioned about test cheating.

But the other APS defendants have joined the Garrity challenge, which is shaping up to be one of the most important decisions for Baxter, who has scheduled a trial in May 2014. Regardless of how he rules, Baxter has said he will let the losing side appeal his decision to an appellate court, which could agree or decline to hear the challenge.

During the lengthy hearing Monday, Steel called several witnesses: special investigators Bowers and Hyde; former Fulton prosecutor Eleanor Ross, who is now a DeKalb County judge; former Fulton District Attorney's Office investigator Stephen Barresi; and Fulton Assistant District Attorney Lance Cross, once a member of the APS prosecution team.

Bowers said when the governor appointed the special investigators he gave them three objectives, with getting to the truth being the overriding concern. The investigation was also charged with developing evidence that could be used to remove teachers involved with cheating and providing information to local authorities for criminal prosecutions, if appropriate.

Bowers said he was aware of the APS directive telling employees to cooperate with investigators or face termination. Tapes and transcripts of those interviews were later sent to the District Attorney's Office, he said.

But Deputy District Attorney Fani Willis, when questioning Hyde, produced an October 2010 memo from the APS general counsel that told employees they could invoke their Fifth Amendment privilege against self-incrimination when questioned by the investigators.

Fulton prosecutors were wary of the Garrity issue, Cross testified. "Because we weren't going to be able to prosecute anyone who gave an incriminating statement, Garrity was not an issue that would be fatal to the indictment."