Judge could gut APS criminal case

7:02 AM, Jun 19, 2013   |    comments
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Video: Judge to rule on motion to dismiss APS case

Judge Jerry Baxter presides over a hearing in the APS case.

ATLANTA -- The judge in the Atlanta Public Schools cheating case strongly indicated he would issue a pre-trial ruling that could gut the prosecution's criminal case against 35 educators.

At the end of a day-long hearing into motions challenging the indictment against Superintendent Beverly Hall, principals, teachers and other school officials, Fulton Superior Court Judge Jerry Baxter said the case made by prosecutors to keep the indictment intact was "ugly."  He repeatedly indicated he was inclined to rule in favor of a motion challenging the case.

The defense motion says that APS administrators improperly compelled staffers to cooperate with investigators appointed by Gov. Sonny Perdue to probe the cheating scandal.  Attorneys for Lucious Brown, principal at John F. Kennedy Middle School, argued that the order stripped witnesses of their 5th amendment right against self-incrimination.

Brown's attorney Brian Steel specifically cited a 1967 Supreme Court case, Garrity v. New Jersey, in which a police officer was charged with a crime after his superiors ordered him to cooperate with a criminal investigation.  Garrity has become a benchmark 5th amendment case involving public employees.

During the hearing, Steel questioned two of the special investigators:  Former Georgia attorney general Mike Bowers, and former Atlanta police officer Richard Hyde.  Both acknowledged questioning APS staff after they had received an APS memo ordering their cooperation.

Prosecutors argued that the Garrity precedent didn't apply because none of the APS educators questioned had confessed to crimes.

The defendants are accused of engaging in what prosecutors have called a conspiracy to inflate CRCT test scores by erasing incorrect answers on student tests, and replacing the incorrect answers with correct ones.

At the conclusion of Tuesday's hearing, Judge Baxter told attorneys he would defer a ruling, but made it plain he was leaning toward granting the defense motion.  If such a ruling prevailed in appeal courts, it could effectively nullify the indictment.

Whichever way Baxter rules, attorneys indicated they would appeal the ruling, which they said could take eight months.  The trial is scheduled to start in May 2014.

Baxter said he would rule after reading transcripts of the investigators' interviews with educators.

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