Six seeking retrial in APS cheating case want a new judge

Attorneys contend the jurist’s comments make him ill-suited to preside.

Six former educators convicted in the Atlanta Public Schools cheating case don’t want the colorful judge who presided over the trial to be the one to con- sider their request for a new trial.

Fulton County Superior Court Judge Jerry Baxter handled the case — the longest criminal trial in Georgia history — that resulted in the 2015 racketeering convictions of 11 Atlanta administrators and teachers. A jury found them guilty of conspiring to cheat on standardized tests by changing students’ answers and receiving bonuses and raises based on the bogus scores.

Seven defendants are seeking a new Fulton County trial. Attorneys for six of them have asked the Georgia Court of Appeals to review Baxter’s participation in the ongoing case, which would include deciding whether or not to grant a new trial.

Baxter spiced up the long-running trial with quippy remarks and zingers that some called rude and others referred to as “Baxterisms.” After he retired, he took “senior status” in 2016, an appointment that allows him to hear cases when needed.

But Stephen Scarborough and Nazish Ahmed, public defenders representing six of the remaining defendants, contend Baxter is ill-suited to continue to preside over the APS cheating case. In court documents, the attorneys point to several of the judge’s

comments from the bench and from an interview after the trial.

They contend Baxter appeared to “aggressively” defend the correctness of the verdict, such as when he told the jury that, according to trial transcripts, whatever the outcome, he “will defend it until I die.” They also allege Baxter rushed defense attorneys during cross-examinations and made “outrageous missteps.”

“Judge Baxter, while a fine judge and a person of great decency, was probably not the best person to review the verdicts in this case,” said Scarborough, in a phone interview.

Baxter denied a recusal motion. In his written response, the judge described his past statements as insufficient to require recusal and said the request was not timely because it pertained to comments made several years ago.

Baxter wrote that his posttrial comment made during an interview, in which he acknowledged still getting “a little worked up” about the case, was a “simple innocuous statement.”

The judge also pointed out the complexity of the APS case, citing the 23,000 pages of trial transcripts.

“Customarily the trial judge considers the motion for new trial because the court’s familiarity with the case benefits all and provides continuity,” Baxter wrote.

Defense attorneys asked Baxter to allow the appeals court to review his decision not to recuse himself. Baxter agreed, and Scarborough expects the appeals court to announce by late February whether or not the appeals court will take up the issue.

Baxter could not be reached for comment.

A deputy district attorney asked the appeals court not to wade into the recusal issue, saying the matter has been “properly decided.” A spokesman for the district attorney’s office declined to comment.

The path to Baxter presiding over the ongoing APS case has been a twisty one.

After Baxter retired, his successor, Judge Paige Reese Whitaker, recused herself from the case because she previously served as Fulton County’s deputy district attorney for appeals. The case was randomly assigned to another judge, who requested assistance of a senior judge to handle it, according to Baxter’s order. In a November order, the court’s chief judge gave the case to Baxter, citing efficiency and continuity.

Nine of the 11 educators convicted of racketeering appealed. Two of those nine went directly to the appeals court, lost, and reported for prison in October.

Scarborough is representing six of the remaining defendants: Diane Buckner-Webb and Shani Robinson, both former Dunbar Elementary teachers; Sharon Davis-Williams and Michael Pitts, both former school reform team executive directors; Theresia Copeland, a former Benteen Elementary testing coordinator; and Tabeeka Jordan, a former Deerwood Academy assistant principal.

A seventh defendant, former Dobbs Elementary principal Dana Evans, is represented by a different attorney, who last month filed an updated and more detailed motion for a new trial.