Judge Says He Is "Seriously Concerned" With APS Prosecution

The judge in the Atlanta Public Schools cheating case said Monday that he was “seriously concerned” about the prosecution’s case surviving a challenge from defendants who claim the entire 60-count indictment is tainted.

Judge Jerry W. Baxter of Fulton County Superior Court offered this assessment after hearing about six hours of testimony about the defendants’ claim that the indictment is flawed because it is largely based on statements made by APS personnel who had been told they could lose their jobs if they didn’t cooperate with state investigators.

“I’m seriously concerned about your case,” Baxter told prosecutors at the end of the day. Testimony is to continue Tuesday.
Most of the day was dedicated to testimony over the argument brought by defense lawyer Brian Steel. He said that the use of coerced statements violated both constitutional protections against self-incrimination and also flew in the face of longstanding federal and Georgia legal precedent.

Steel assailed what he termed a “free flow” of statements made by APS employees from investigators appointed by Governor Sonny Perdue to the office of Fulton County District Attorney Paul Howard.

Steel said prosecutors and investigators should have attempted to ensure that statements made by fearful APS employees were not used against them when drawing up the indictment. Instead, he said, those statements provided most of the indictment’s foundation.

“This is the most tainted case since Garrity,” said Steel, citing a seminal 1967 U.S. Supreme Court case protecting public employees who are threatened into making statements that are later used against them.

In Garrity v. New Jersey, a group of police officers being investigated for ticket-fixing were told to cooperate with investigators or they could be fired. When they were later prosecuted, the officers moved to suppress the statements because they had been coerced. The Supreme Court ruled that statements obtained under the threat of removal of employment were barred from use in subsequent criminal prosecutions.

“Why is Garrity not involved?” Baxter asked prosecutors at the end of the day. He repeated the defense argument that “if one person is tainted, that’s a violation.”

Bondurant Mixson & Elmore partner John Floyd, who is a special assistant district attorney in the case, cited a federal case that said a defendant is not coerced if he is merely told to cooperate with an investigation.

Earlier in the day, Floyd said false statements are not protected by law. He added that each defendant’s case is different, so a blanket movement for dismissal was improper.

Steel said the use of the compelled statements demanded the dismissal not only of charges against his client, former Kennedy Middle School Principal Lucious Brown, but against all of the defendants because their charges are fruits of the tainted evidence.

In a sometimes-testy exchange with Steel, one of those investigators, former Georgia Attorney General Michael Bowers, said he and his team had been tasked first with finding out whether cheating had occurred, then with trying to make sure the offending personnel were removed.

The “tertiary” goal, he said, “way down the list, was to provide information to law enforcement authorities” to consider for potential criminal charges.
Under Steel’s questioning, Bowers confirmed that all of the reports, recordings and work product from the investigation had been turned over to Howard’s office after the final report was finished in July 2011.

Bowers conceded that two of Howard’s staff members, former Senior Assistant District Attorney Eleanor Ross (now a DeKalb County State Court judge) and an investigator, had been active participants in the investigation.

But he stoutly maintained that Howard had not been “intensely involved” in the investigation, notwithstanding Howard’s statement during a 2010 press conference announcing the investigative team that he intended to do just that.

After being tapped by Perdue, Bowers and former DeKalb County DA Robert Wilson, along with Bowers’ law firm investigator, Richard Hyde, embarked on a sweeping investigation into allegations of widespread cheating by APS teachers and administrators.

They were assisted by more than 50 Georgia Bureau of Investigation agents and armed with a mandate from former APS Superintendant Beverly Hall that school system employees must cooperate with the investigators or risk losing their jobs and teaching certificates.

In July 2011, the team issued an extensive report that included detailed accounts of their interviews with the APS personnel.