Valdosta Daily Times

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April 2, 2013

RICO presents challenges in Atlanta cheating case

ATLANTA — The criminal prosecution of dozens of Atlanta Public Schools educators presents considerable challenges for both prosecutors and defense attorneys because of the use of a complex law initially designed to dismantle organized crime, legal experts say.

Thirty-five educators within the Atlanta school system, including former Superintendent Dr. Beverly Hall, were named in a 65-count indictment last week that alleges a broad conspiracy to cheat, conceal cheating or retaliate against whistleblowers in an effort to bolster student test scores and, as a result, receive bonuses for improved student performance. Prosecutors set a Tuesday deadline for all defendants to surrender to authorities.

Jail spokeswoman Tracy Flanagan said that no defendants had been able to turn themselves in as of late Monday afternoon because of a delay in the filing of the arrest warrants in the case, though the warrants were filed later in the evening. At least a few had planned to surrender Monday.

Each defendant is charged with violating Georgia’s Racketeer Influenced and Corrupt Organizations statute, also known as RICO. The law is modeled on the federal statute, which Congress enacted in 1970 to take down mobsters.

Criminal RICO cases can be extremely complex with multiple elements to prove beyond the basic crime. That includes establishing a criminal enterprise, in this case the Atlanta Public Schools system, and a pattern of criminal behavior.

“It gets very complicated when you try to describe all of this to a jury and to convince a jury that a person is guilty of all of this by a reasonable doubt,” said Jeffrey E. Grell, a former assistant attorney general in Minnesota and expert on RICO cases. “Particularly in a RICO case, because you have people pointing fingers of blame all over, I’m sure it’s going to be very complicated.”

Grell, who teaches at the University of Minnesota Law School, said the inherent nature of the law — to prosecute “people who don’t get their hands dirty” — also makes it a challenge to secure a conviction. Although the defendant doesn’t have to engage in the crime directly, prosecutors must show the defendant was directly operating or managing the criminal enterprise, Grell said.

“The critical issue is going to be intent,” Grell said. “All of these defendants, the prosecution will have to prove they knowingly and intentionally set out to defraud and engage in cheating. I’m sure some of these administrators and defendants will say they did not know what was going on.”

Grell said RICO cases can be expensive, especially with multiple defendants and multiple allegations of criminal wrongdoing.

The defendants include high-level administrators, principals, assistant principals, teachers, testing coordinators, a school secretary and a school improvement specialist. Hall, the former superintendent, has long denied any knowledge of the cheating.

A 2011 state investigation revealed widespread cheating by nearly 180 educators in Atlanta schools dating back to 2001. Investigators said educators gave answers to students or changed answers on tests after they were turned in, and teachers who tried to report it faced retaliation, creating a culture of “fear and intimidation.”

The tests were the key measure the state used to determine whether it met the federal No Child Left Behind law. Schools with good test scores get extra federal dollars to spend in the classroom or on teacher bonuses.

On Friday, in announcing the indictment, Fulton County District Attorney Paul Howard used the story of an Atlanta third-grader to underscore the importance of the case, with teachers and administrators more focused on test scores than student improvement. He said the girl received the worst score in her reading class in 2006 and yet, when she took an assessment test, she passed with flying colors. The girl is now in ninth grade, reading at a fifth-grade level.

The high emotions surrounding the case and the extensive media publicity will also pose challenges for prosecutors and defense attorneys.

It’s likely that one or more defendants will seek to have the case moved out of Atlanta or to have jurors brought in from another part of the state, which is allowed under Georgia law, said Ron Carlson, professor of law emeritus at the University of Georgia. Some of the defendants may also ask to have their trials be separate from the others in the hopes of strengthening their case, Carlson said.

And the stakes will increase the pressure on everyone involved in the case.

“I consider this one of the most important, one of the seminal developments in the history of American education law. It’s the largest school teaching scandal yet recorded in the country,” Carlson said. “A high-profile case like this one puts public attention and public pressure on the various moves made by prosecutors and defense attorneys.”

Morgan Cloud, a professor at Emory University School of Law, said prosecutors will also have to work to explain the RICO law to jurors.

“When we think of racketeers we think of the Gambino family in New York ... people who engage in murder and drug dealing and prostitution,” Cloud said.

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