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RICO a Powerful Tool in APS Test-cheating Case
RICO: the heavy artillery was on the mark
John Floyd's role in the Atlanta Public Schools test-cheating case is featured in an article in the Atlanta Journal Constitution.
RICO: the heavy artillery was on the mark
Wednesday, April 1, 2015
By Bill Rankin - The Atlanta Journal-Constitution
John Floyd, a private attorney who worked for free throughout the grand jury investigation and lengthy prosecution of the Atlanta Public Schools cheating case, is shown in Fulton County Superior Court on March 16, when he played a pivotal role in the state's closing arguments in the APS trial. Floyd, the state's premier RICO expert, said the APS case was a perfect fit for the racketeering statute, and he explained why to jurors during the state's close. (Kent D. Johnson, The Atlanta Journal-Constitution)
When the state brought racketeering charges against Atlanta Public School employees for cheating on tests and then covering it up, criminal defense attorneys said it was overkill.
Teachers, principals … racketeers?
On Wednesday, however, jurors unanimously agreed that 11 of the 12 former educators on trial were guilty of engaging in a racketeering conspiracy.
The federal racketeering law — called RICO, for Racketeer Influenced and Corrupt Organizations — was enacted in 1970 to fight corruption and organized crime. But Georgia’s law, passed in 1980, has been used by state prosecutors as a hammer against gang leaders, public corruption, even an assisted-suicide group.
“It was never intended for this type of prosecution,” Atlanta defense attorney Bruce Morris said of the APS case. “RICO was designed to combat organized gambling, loan sharking and your classic 1920s, 1930s, 1940s organized crime syndicates. The Atlanta Public School System is not some kind of syndicate to be used for carrying out illegal acts.”
But John Floyd, the state’s premier RICO expert and a special prosecutor for the Fulton County district attorney, said the APS case was a perfect fit for the racketeering statute. And it’s not necessary to demonstrate an organized crime connection to prove racketeering, he told jurors during closing arguments.
Floyd said the prosecution had proven that the APS defendants knowingly joined into a conspiracy and used the Atlanta school system as a criminal enterprise. And the convicted former educators shared common goals: to cheat and to cover up the cheating. This, Floyd said, constituted a racketeering conspiracy.
‘These are smart people’
RICO is used to protect legitimate enterprises from being used for illegal means, Floyd said. He noted that the educators’ agreement didn’t have to be in writing and there didn’t have to be some secret sit-down in which the players plotted a conspiracy.
“These are smart people,” he told jurors. “They didn’t want to get caught. They weren’t going to sign an agreement.”
Floyd, a private attorney from the Atlanta firm Bondurant, Mixson & Elmore, worked for free throughout the grand jury investigation and lengthy prosecution.
He did not play a prominent role at the trial until closing arguments, when he became almost professorial in explaining the racketeering law to the jury and demonstrating how the educators had violated it.
“John Floyd is a brilliant tactician,” said Richard Hyde, one of the governor’s special investigators who helped expose the cheating scandal. “He knocked it out of the park, like he always does.”
‘The nuclear bomb of state charges’
What the 11 former educators will soon learn: a successful RICO prosecution carries potentially serious prison time.
“It’s like the nuclear bomb of state charges against nonviolent offenders,” said Atlanta defense attorney Steve Sadow, who was not involved in the case. “It carries such a heavy potential sentence — up to 20 years in prison. And Georgia’s parole board looks at it as a top-tier crime, so the chance of early parole is remote.”
RICO, Sadow said, “can take a run-of-the-mill criminal act and turn it into a severe crime with horrible consequences.”
Jack Martin, another defense attorney not involved in the case, said RICO is a powerful weapon for prosecutors.
“It allows all sorts of evidence that wouldn’t be allowed in most other cases,” Martin said. “It also raises the possibility of someone being convicted of guilt by association.”
Those who rolled the dice
In this case, Fulton prosecutors said, the defendants turned Atlanta Public Schools into a racket.
“It seems to be a stretch to use RICO in a school system case,” Martin said. “But technically it can be used this way under the law. A racketeering conspiracy charge allows prosecutors to lump a bunch of defendants together and make them all responsible for what everyone else did. It’s the darling in a prosecutor’s nursery of possible charges.”
In his closing argument, Fulton prosecutor Clint Rucker provided a concise summary of what at times appeared to be an unwieldy conspiracy case.
The former educators helped create a false impression of academic success, then covered up their actions — in part because The Atlanta Journal-Constitution was investigating the scandal, Rucker said.
“They didn’t investigate complaints,” Rucker said. “They retaliated against whistleblowers. They shredded documents. They lied to investigators.”
The defendants shared a common purpose: “to keep this false impression going – and growing,” he said.
‘More mouseketeering than racketeering’
A Fulton grand jury initially charged 35 former educators with racketeering and other lesser felonies. Two of those defendants, including former Superintendent Beverly Hall, passed away. Twenty-one entered into guilty pleas and received sentences of probation.
As for those who rolled the dice and went to trial, Sadow said, “It was certainly an unwise risk in light of what was being offered.”
Back in December, at about the midway point during the trial, Fulton Judge Jerry Baxter questioned the prosecution’s racketeering case.
“I’m somewhat doubtful about the RICO, ” Baxter told attorneys, giving his assessment of the testimony he’d seen up to that point.
Baxter also conceded that he did not know how things would ultimately turn out. And, as he did from the outset of the case, he warned the defendants of “dire consequences” if they were found guilty.
At that time, prosecutors still had weeks and weeks to go. And jurors clearly found a great deal of that evidence and testimony convincing.
Before the trial, Atlanta lawyer Bruce Harvey, who represented former Venetian Hills Elementary School principal Clarietta Davis, ridiculed prosecutors for bringing RICO charges.
“This is more mouseketeering than racketeering,” Harvey said famously.
‘It’s stunning, just stunning’
Davis would later plead guilty to a reduced charge and receive two years on probation.
She also would be one of 14 cooperating witnesses to testify for prosecutors at trial.
On Wednesday, Harvey said he couldn’t believe the verdicts.
“It’s stunning, just stunning,” he said. “I had never ever imagined anyone would get convicted of RICO. It makes me doubly glad we resolved our case prior to trial.”