Two former judges on convicted APS educators: Jail neither mandated nor appropriate

Thelma Wyatt Cummings Moore is a retired Fulton County Superior Court judge. Bettieanne Hart is a former Fulton County deputy district attorney and a former Superior Court judge in Augusta. Hart was on the legal team representing former APS Superintendent Beverly Hall who died before going on trial.

In this joint essay, the pair call for alternatives to jail time for the convicted Atlanta educators. At a rally Tuesday, hundreds of people in a Southeast Atlanta church voiced the same sentiment.

The AJC reported from the rally:

“I don’t know about you, but it was the handcuffs,” Atlanta City Councilman C.T. Martin said, conjuring up the sound of the metal cuffs being shut around the wrists of the just-convicted educators after a jury announced its verdict. Six men and six women convicted 11 of the 12 on trial and acquitted one, retired special education teacher Dessa Curb.

Shock has been one response to images of handcuffed teachers being taken to jail. Another has been outrage at the cheating and the damage to children who were promoted because of inflated test scores even though they could not do the work.

Here is the view of the two former judges.

By Thelma Wyatt Cummings Moore and Bettieanne Hart

Superior Court judges and district attorneys are vested by our Constitution with awesome decision-making authority and power. A judge’s power to sentence is constrained only by the dictates of the law that is violated.

First Iconium Baptist Church in Atlanta was filled with supporters during a rally Tuesday seeking leniency for 11 convicted educators in the APS trial. Most of the 11 educators face maximum sentences of 20 years each behind bars. HYOSUB SHIN / HSHIN@AJC.COM

First Iconium Baptist Church in Atlanta was filled Tuesday during a rally seeking leniency for 11 convicted educators in the APS trial. Most of the 11 educators face maximum sentences of 20 years each behind bars. HYOSUB SHIN / HSHIN@AJC.COM

In most sentences, there are options, including probation, intensive probation, community service, fines and, of course, confinement. Presentence reports are done to provide the judge with a sense of the person — prior offenses, character, community attachment, family support, age, education, other penalties resulting from their crime, and predictors of the defendant reoffending, all factors normally taken into consideration.

Recently, there has been a trend to limit the judge’s discretion in sentencing in the most egregious crimes which are perceived as threatening community safety — recidivist drug offenses, sex offenders, etc. which require mandatory sentences; but recently on the national front and in Georgia, policy makers have begun to question the wisdom of such mandatory sentences in light of the abuses which can occur if the judge is not allowed to consider the individual person and circumstances.

In fact, alternative sentencing has been studied and implemented in Georgia in light of the tremendous fiscal and human prices paid by society for imprisoning non-violent defendants.

In the Atlanta cheating trial, the 11 defendants have been convicted of charges the DA exercised his awesome discretion in bringing under the Georgia Racketeering Influenced Corrupt Organizations Act, as well as other felonies, punishable by more than one year and in the case of racketeering, up to 20 years.

There will be continuing debates on the wisdom of the district attorney’s charging decision. Contrary to public pronouncements from the bench, Superior Court Judge Jerry Baxter’s oath makes it his responsibility to sentence based on the facts of the case, the presentence reports on the defendants, and their perceived threat to community safety.

The right to a trial by jury is inviolate under our Constitution. While the plea bargaining process has become commonplace in our courts as a prosecutorial tool to expedite the case processing procedure, and handle the tremendous criminal caseload, it is neither mentioned in the Constitution nor mandated by state law.

To impose a more punitive sentence because the educators put their faith in the jury system and asserted their constitutional right to jury trial would be an enormous abuse of the broad discretion placed in the judiciary. While it is the judge who has the ultimate decision-making authority, the district attorney, the state’s prosecutor, holds the power to shape the process.

Solely vested with the power to determine whether or not to bring charges, what charges to bring, what plea bargain to offer, and what sentence recommendations to make, the stage for sentencing is set by the prosecutor.

Having chosen to prosecute the educators for felonies, including racketeering, the charge created for organized crime, mobsters, and gang activity, Fulton District Attorney Paul Howard can now only make recommendations within the sentencing prescribed for the convictions. The judge is not required to accept them.

However, as the people’s elected official, Howard should perceive better than anyone the degree to which this complex prosecution has impacted the lives of all people in this community, not just the students, but the Atlanta community as a whole, the Atlanta Public Schools, thousands of teachers and employees, thousands of students who did benefit from the higher standards and millions of non-taxpayer generated dollars, the city and chamber charged with recruiting businesses to a city now labelled with the biggest cheating scandal in the country.

Howard chose to allow the 21 educators who admitted to changing answers to plead to misdemeanors, in exchange for their testimony against their supervisors and return to their homes, find other employment and resume their lives.

Except for one defendant, the higher tier of supervisors within the senior cabinet, those who set policy for performances and bonuses and report directly to the superintendent were deemed “unindicted co-conspirators” and not prosecuted.

Two accused administrators, including the superintendent have died. The 12 defendants who refused to plead to felonies exercised their constitutional right to a jury trial.

Some 40 other states have had cheating scandals according to the United States Government Accountability Office. None has resulted in criminal charges and, especially not racketeering charges, as Paul Howard chose to prosecute.

The district attorney needs to consider these facts in his sentencing recommendation as well as the non-judicial sentences which the convictions of these educators impose upon them — loss of professional licenses which make it impossible for them to return to their chosen professions; financial loss as a result of their inability to work for more than five years; forfeiture of the lifelong pensions for which they have worked; and the detriment to their families and communities of their loss of service and talent as a result of the stigma which these prosecutions have imposed.

While it may be counterintuitive to Howard’s prosecutorial instincts to recommend minimum sentences, the discretion vested in him by the Constitution and the trust placed in him by his constituency cry out for his statesmanship. He should make a humane recommendation that helps to heal this community and restore the lives of these educators.

Moreover, Judge Baxter should exercise his tremendous discretion in imposing sentences which reflect that any conspiracy involves our entire educational system in the high-stakes testing arena. These educators did not create the system in which schools have been corrupted across this nation by making standardized tests the chief measure of school, teacher and student performance.

Certainly, incarceration is neither mandated nor appropriate in this case.

Reader Comments 0

173 comments
TopSchoolAtlanta
TopSchoolAtlanta

Atlanta Journal-Constitution reports that not only is former APS Deputy Superintendent Augustine not a "cooperating witness" in the case, but that Fulton County prosecutors never even questioned her about the cheating. Her attorney also told the newspaper that Augustine was never called to testify before the grand jury either.

MaryElizabethSings
MaryElizabethSings

Justice with mercy.


Beyond that, I would like to comment that most of us have been programmed to see the world through human faces, either villains or heroes.  But, in this case, I believe that the “villain” was over and beyond any one human being, including Dr. Beverly Hall.  


The real culprit in this massive tragedy is in thinking that the square-peg business model  will fit into the round hole of the educational model.  It is impossible to do that, without ingrown corruption occurring.


For years, I have written that standardized testing should only be used for diagnostic purposes to insure that each student be placed on his or her precise instructional level and then taught on his/her precise instructional levels throughout the twelve grades.  When we use test scores to compare teachers, and schools, and schools systems with one another, and offer bonuses for “success” and firings for “failure,” we have not only bastardized public education, we have prostituted it for profit. 


One cannot compare teachers and schools with one another because every class and school will have completely different students. Education deals with human development with all of it complexities; business deals with products sold for profit.  Huge difference.  This mess is the result of wrong-headed, simplistic thinking where business leaders are trying to dominate every area of our democracy.

MaryElizabethSings
MaryElizabethSings

@Astropig


I don't "hate business" as you state, erroneously.  Business is the economic engine that helps to make America successful. (America's Founding Father Alexander Hamilton would agree.)


But, business and its profit motivation do not belong in public education. (America's Founding Father Thomas Jefferson would agree.)

Astropig
Astropig

@MaryElizabethSings @Astropig


I don't know how you can speak for Jefferson when he would not recognize what business or education has become in the 21st century.He had every chance to put education in the constitution and demurred. He practiced business (including plantation slavery),so he wasn't opposed to people earning a living and prospering. At your next seance,ask him how you can reconcile these facts.Then report back to us what he told you with no embellishment.

MaryElizabethSings
MaryElizabethSings

@Astropig 


Again, I am not opposed to "people earning a living and prospering."  I worked for 42 years of my life, straight up, both as a teacher and as a secretary in the office of the Vice-President of NYU.


In all due respect, Astropig, I have read much about Thomas Jefferson by various scholars, and imho, you have little understanding of the mind of Jefferson.

popacorn
popacorn

@MaryElizabethSings

I understand Jefferson's mind enough to know that if he saw a certain person walking down the sidewalk, he would cross to the other side.

Astropig
Astropig

@popacorn @MaryElizabethSings 


@Pops 


I thought that this was interesting. It was in the AJC today:


"Cortez Benjamin, 48, and his girlfriend Cherie Miller, 35, pleaded guilty in Fulton County to Georgia RICO Act charges and 13 other counts of credit card fraud and theft. Benjamin was sentenced to 10 years to serve five and Miller 10 years to serve four, the rest on probation."


Since we spent the week playing "Moral Equivalency Bingo", how does credit card fraud stack up with what the APS gang did?They were both convicted under the RICO act. Do you think that the sentence for these two petty crooks will compare with what the teachers will get? Does the fact that this pair got a pretty stiff sentence bode ill for the APS 11? (The article doesn't say which judge lowered the boom on these two,so we must speculate).


Whaddaya think?



Astropig
Astropig

@MaryElizabethSings


"This mess is the result of wrong-headed, simplistic thinking where business leaders are trying to dominate every area of our democracy."


That's not what the jury thought. The ones that have spoken publicly have placed most of the blame on Beverly Hall. 


Look, I know you hate business and all that, but the first step to recovery is admitting that there is a problem.These people crossed an ethical and then a legal line and cheated kids and taxpayers. This is not my opinion,this is a settled fact from a court of law.If it makes you sleep better to blame that on business,then fine. But that is not realistic.

gactzn2
gactzn2

It is a tough decision, but I do recognize that it was too late for many of them to accept the consequences of misdemeanor offenses.  It will be interesting to see how it is decided.  I am not sure there is a great deal of latitude with RICO sentencing.  I anticipate that they will do some time behind bars, though I wished they would have accepted their plea deals.  It is unfortunate- but they have had their day in court and they cannot go back now.

WholeTruth
WholeTruth

@gactzn2 Why should they have accepted a plea deal, when most of the defendants did nothing wrong.  If they are sentenced to any more jail time, than already served the prosecutor and judge should be indicted for wasting twenty million tax dollars prosecuting this case. Remember the total bonus money received in this case was less than 2,000 dollars for the 11 convicted. Charging these teachers with racketeering should be seen as fraud to the taxpayers of Atlanta and the prosecutor should be charged, indicted and sentenced as a criminal. (That's a FACT)

bu2
bu2

@WholeTruth @gactzn2 


More like Whole Denial.  11 of the 12 were found guilty.  Beliefs like that are all the more reason they should be sent to jail so that people understand this IS a crime.

WholeTruth
WholeTruth

@bu2 @WholeTruth @gactzn2  The problem bu2, is you don't have the ability to form a complete thought. Name the crime that the first grade teachers committed?  Perhaps your brain doesn't have the ability understand the true definition of denial.  

Starik
Starik

True, these are relatively decent people who committed a white collar crime, and many were coerced by superiors who got away with it by helping the prosecution.  They have had a taste of jail, the bad food and bad company, but they've been kept together and not locked in with the general population. 


Judge Baxter also needs to consider the importance of an effective school system to the deprived kids who make up much of the student body - their only chance is to emerge from the APS system with enough education to hold a decent job, get further training, or join the military. The quality and integrity of the school system matters. 


Judge Baxter may be losing some sleep over this one.

jerryeads
jerryeads

Who knows why the eleven chose to go to trial. They did indeed make their bed (although perhaps it's their lawyers who deserve at least equal punishment). The most evil of the entire bunch were two leaders - one of whom is no longer here and another who plead out and essentially got off scot-free (sans, we hope, of any possibility of ruining any other school systems). Given the number of teachers' and students' lives those two ruined, they are the two who deserved severest punishment.

WholeTruth
WholeTruth

@jerryeads What lives did they ruin?  If you believe that. I live in Florida and will sell you the hardest commodity in the world, Salt Water! 

class80olddog
class80olddog

There are two reasons we apply punishment in criminal cases:

1) To keep the individual from committing the same crime again - I think this has been accomplished

2) To send a message to others who might commit the same crime that the penalties will be so great that THEY will not commit the same crime - here is where the convicted need to be sentenced more harshly.

bu2
bu2

@class80olddog 

There are really 3 theories of punishment (according to a prosecutor in a trial I was a juror on):

1.  Rehabilitation;

2.  Retribution; and

3.  Deterrence.


I can see you are a deterrence person as am I.  Those opposing prison time seem to be mostly rehabilitation people.

REGAN1966
REGAN1966

What Sex, Color and Political Affiliation are these 2 Judges? 

I think you know WHY they hold their opinions. 

biggysmalls
biggysmalls

@POAD5150


So if some one has a different view than the two judges, would we know why they hold those beliefs based on their sex, color, and political affiliations?  Really, I don't see this as being political in any way share or form.  people of all political convictions have very different views.

eulb
eulb

When I first read this essay, I felt sympathetic.  Then I read that one of the co-authors (Bettianne Hart) was on Beverly Hall's defense team. 

So with that info about Hart, I sat back and thought things over. 

In this essay, Hart is casting herself as an unbiased former judge offering her wisdom to a sitting judge who is facing a momentous decision.  But in reality, Hart is far from unbiased. She was directly involved in the defense of the person accused of being the ringleader in this very case!  Hart should have revealed that fact herself and told the "whole truth," but she didn't.  Much to her discredit.

Bottom line:  Here we have 2 ex judges involved in drumming up a crowd to pressure/influence a sitting judge during the sentencing phase of a fairly conducted trial.  That's just plain wrong! 

My initial respect for these 2 former judges is gone.  And with it went my sympathy for their cause.

I hope Judge Baxter can  resist the mounting pressure and proceed through the sentencing phase with integrity.

And I hope these 2 ex judges remain "ex".

Astropig
Astropig

@eulb 

Hart could very well still have a financial interest in Hall's estate. All of you "Follow The Money !!!!!" people- Start following.

eulb
eulb

@BubbaTJ @eulb re "ex journalist".  If you're referring to Maureen Downey, I disagree with you.   I don't fault her in this.  I doubt she was aware of Hart's role when she published the essay.  When she became aware, she edited the first paragraph so Hart's involvement in Beverly Hall's defense team is one of the first things the reader sees.  That's as it should be.  (Thank you, MD.)

As for the AJC, we have them to thank for reporting on the cheating in the first place and following it diligently all these years.  I think they did excellent investigative reporting in this case.

I remember the Richard Jewell matter.  He saved lives in the Olympic Park bombing (1996), but was presumed to be the villain by both local and national media.  His life was wrecked by that.  Hopefully, journalists learned a lesson. I don't see the same sort of reporting in this APS  case at all.

eulb
eulb

@BubbaTJ @eulb Thanks for your comments, too.  I agree that it would be better for Maureen to add a note such as you suggested.  ("Please note this edit I have made ....") But I'm fine with the way she actually edited it. 

I do not share your suspicions about Maureen's intent.  In the past when I noticed what I considered an important error, I alerted her politely and she responded by correcting the error. Seemed fair to me.

So I don't see any sinister agenda here. If I did, I would not participate.


biggysmalls
biggysmalls

@Astropig @eulb

Most lawyers in these situations work on retainers, meaning she would have already been paid.  Rarely will you see a lawyer represent a terminally ill client and bill that person.  To probate an estate can take many years.  We all know Dr. Hall had the money to pay her legal team, so I would be surprised if any of the lawyers were not paid in advance.  This would result in not having an interest in her estate.  By the way, if you face a situation such as this, you would be best served getting your money on the front end, unless you just want to wait 3-5 years.

eulb
eulb

PS (by eulb)  The jury was sequestered to prevent them from being influenced by media & events outside the courtroom.  I've never heard of sequestering a judge, but now I'm wondering about that.  Should judges be protected from outside influences the way juries are?

Wascatlady
Wascatlady

By the way, HOW MUCH DID the prosecution cost,  not including the original investigation?  I mean the DAs office, expert witnesses, judge, jury expenses, courthouse expenses,etc. The cost of the original investigation should  be divided by all those charged, including those who pled, but it would be instructive to know how much expense went into the convictions.

Starik
Starik

@Wascatlady It was very expensive indeed, and disruptive of the court system.  Now, somebody needs to see if any of the participating defense lawyers were appointed, and paid an hourly rate.

nam51
nam51

The manner in which so many of the Atlanta 'establishment' have defended Beverly Hall and her minions is absolutely appalling. These judges say nothing about the children harmed, nor anything about how Hall, Cotman, et al attempted to corrupt the judicial process.


Bless Paul Howard for throwing the book at these people. Any one of them could have admitted guilt and moved on with their lives. But they chose to believe they could  get away with lying, deceit, manipulation and more. Most egregious is they believed that harming children was okay.


That's the bottom line: children were harmed. If any private citizen harmed a child - and these people did - they'd go to jail for a significant amount of time.


Give them at least 2 years; send a message that the education and lives of our children are our most important priority.



Astropig
Astropig

@nam51


I have a special place in my heart for Cotman. Every single one of us has worked in an organization with a Cotman somewhere in it's structure. A person who's only apparent talent is a taste for the dirty work that the boss doesn't want to do. A person that rules by fear and intimidation and has the morals of a jackal.Beverly Hall should have been ashamed to even know Tamara Cotman, much less employ her in a position of high responsibility.The fact that the two of them profited so handsomely from their association makes articles like this an affront to decency.These people in the churches and quoted herein? They're arguing for mercy for Cotman along with the people she bullied until she was removed. 

chalkdawg4
chalkdawg4

12 months in county lockup.  They will be out in 4-6 I assume.  Pretty rough but nothing like the state system.  Don't know if he has the discretion to send them to county over a felony conviction though?  Stupid not to plead.  I would like to know why the jury acquitted the one defendant.

Astropig
Astropig

I take special exception to this:


"Howard chose to allow the 21 educators who admitted to changing answers to plead to misdemeanors, in exchange for their testimony against their supervisors and return to their homes, find other employment and resume their lives."


The others could have taken a misdemeanor and moved on (probably excepting Hall and her very top capos). These people were just plain stupid.They had bad legal counsel.They believed that articles like this would save their hides.Whatever the reason,they gambled and lost.When you're offered a misdemeanor in place of a felony,you take it and run with it before they change their minds.A misdemeanor isn't a whole lot worse than a traffic ticket. It won't keep you from getting a job,voting or exercising a lot of other civil rights that we take for granted.The fact that they didn't take a plea deal tells me that they don't believe that they really did anything wrong. That's why I'm okay with any sentence that Judge Baxter hands down,but I do believe that they need to serve some time.If the penalty is the same for a felony as a misdemeanor,then we may as well just start sentencing people based on factors other than the law. Maybe we need to equip judges with Ouija boards.Maybe we need a "Wheel O' Justice" in the jury box that defendants can spin after a conviction. 



biggysmalls
biggysmalls

@Astropig

I agree that some of these people should have gotten better representation.

jezel-dog / Coach - me
jezel-dog / Coach - me

@Astropig Yep. In Georgia always take the plea. Guess their lawyers did not do so good. Cannot imagine what their reasoning was. The state wins some 98 percent of the time. They could have made a point some other way.

bu2
bu2

@Astropig 

That's my belief.  Several of these don't believe they did anything wrong.  That somehow THEY were the victims.


Now Cottman, Pitts, they thought they could get away with it.

popacorn
popacorn

@bu2 @Astropig

'Several of these don't believe they did anything wrong.'

Truly great, world-class liars convince even themselves that they didn't do it. 

redweather
redweather

While one of these judges was still on the bench, she had a reputation for being rather imperious, to say the least, in the courtroom.  It was not at all unusual to hear attorneys complain about how she used her awesome power as a trial court judge.

jezel-dog / Coach - me
jezel-dog / Coach - me

The APS cheating scandal is really insignificant in terms of the student..when compared to what is happening in public education in the rest of Ga.


I understand that greed drives the market place...but it would have been nice to have kept it out of  public education to some degree. That 1 billion + dollar school budget was just too enticing to leave alone. Who knows how many entities have a shot at it now.


Maybe worrying about this test cheating scandal makes one feel better...but there are much bigger fish to fry.

POV1948
POV1948

@jezel There is plenty wrong with education in the state, but to dismiss this criminal behavior as insignificant is an insult to students, parents and taxpayers.  Whether they were driven by greed for bonuses or fear of reprisal from higher-ups, these "educators" made the choice to commit crimes.  Choices have consequences.

sys
sys

Very well stated, ladies of the law! Proud to call both of you my friends. Hope that all of our outcries will make a difference next week.

General Concern
General Concern

Basically, could a person of integrity have survived under this blackboard mafia? If not, then jail is in fact warranted, though not 20 years, and I'm not even sure 5. 


Maybe the kneecapping they did was to careers and standards and not to actual kneecaps, but it was a "mob" of a sort--a group employing means of 'enforcement' and intimidation to get what they wanted, which was personal gain. Jail is necessary to tell those in bureaucratic positions that they will not run their government fiefs as "Lord of the Flies" Island, nor the midnight shift of Abu Ghraib prison--places where good is bad and bad is good--and get away with it unscathed when caught.  

Astropig
Astropig

@PSWallace


Terrific analysis. If these people get through the system and get a slap on the wrist,the only thing that you can say for sure is that the next scandal will be a lot bigger.The next gang that attempts this will simply factor a little "community service" into their calculations when they cross the ethical line.


I invite you to play a little game of What If?


What If... Michelle Rhee had been tried and convicted of this? Do you think this space would be pleading for mercy for her


What If...The teachers and lower level administrators had held a surprise press conference after the Cotman meeting (where she demanded stonewalling the GBI) and laid the facts bare that there was a criminal conspiracy afoot? 

(We would have gotten one of the "Question Headlines" that this space is famous for - "Testing Irregularities Or Disgruntled Employees?")


It's bad enough that these people did this,but trying to give them a pass seems like victimizing the kids twice.

living-in-outdated-ed
living-in-outdated-ed

UPDATE to my previous comments. I think these retired judges should have been in the courtroom and heard the evidence.   Now two of the jurors are saying unequivocally that Hall knew about the cheating and that it was 100% an organized effort.

Astropig
Astropig

@living-in-outdated-ed


Yes. Thank you.


I think that the teachers and administrators had a moment where they could have discerned that they were pawns when Tamara Cotman encouraged them to break the law by stonewalling and/or misleading the GBI in their investigation.At that moment, anybody in that room should have stood up, announced that they were not going to lie to protect anyone and walked out. They may have been fired.But they could have gone to anybody at the DA's office or the AJC and sang like a canary.

OriginalProf
OriginalProf

Disgusting. Not a word said here about the thousands of schoolchildren who were damaged by this cheating in not being given needed remediation since their tests seemed to show they were doing excellent work. 


I was not aware that God has given special dispensation from justice to educators because they belong to such a respectable, middle-class profession. But that is the argument that seems to be made by their supporters.


Disgusting.

popacorn
popacorn

@OriginalProf Agreed. But it's not just that kids didn't get remediation, what do you wanna bet they were not even taught in the first place? These teachers knew they had an 'out' in cheating. Why work? Play more games and videos! Beyond disgusting. 

Astropig
Astropig

@OriginalProf


Agreed and amen. When we rationalize lawbreaking because we are simpatico with the defendants,pretty soon we don't have a nation of laws. I've traveled pretty extensively in nations that don't have the rule of law and believe me,you don't want justice determined by political affiliations or "connections". And this "moral equivalency" meme of the last few days is wayyyy past its "best by" date in this case.


I want to see justice. Not revenge,not "getting even",but real justice,where both sides agree that there is true equality under the law.

class80olddog
class80olddog

In case you don't know,  the CO in RICO stands for Corrupt Organizations.  I think you can reasonably call APS during that time a "corrupt organization"!