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Cotman v. State

Court of Appeals of Georgia, Fourth Division

August 11, 2017


          DILLARD, C. J., RAY, P. J., and SELF, J.

          Dillard, Chief Judge.

         In 2010, Governor Sonny Perdue ordered a special investigation into the nearly decade-long suspicions that administrators, principals, and teachers in the Atlanta Public Schools System ("APS") had engaged in widespread cheating on standardized tests used to assess the progress of elementary and middle-school students in Georgia. After the conclusion of that investigation, the State indicted thirty-five APS administrators, principals, and teachers for crimes ranging from altering State documents, providing false statements to law-enforcement officials, and conspiring to violate the Georgia Racketeer Influenced and Corrupt Organizations ("RICO") Act. Ultimately, the State jointly tried 12 defendants, including School Reform Team Executive Director Tamara Cotman and elementary school teacher Angela Williamson. Then, following a six-month trial, a jury convicted 11 of the defendants, specifically convicting Cotman and Williamson of conspiring to violate RICO and also convicting Williamson on two counts of making false writings and two counts of false swearing.

         In separate appeals, which we have consolidated for review at the parties' request, Cotman and Williamson contend that the trial court erred by instructing the jury that it could find that they violated either of the two subsections of the RICO statute despite the indictment charging the violation in the conjunctive, failing to find that this instruction created a fatal variance, and sentencing the defendants under the RICO statute rather than the general conspiracy statute. Cotman further contends that the trial court erred in denying her plea in bar of double jeopardy. Nevertheless, for the reasons set forth infra, we affirm the convictions of both Cotman and Williamson.

         APS, Academic Targets, and Adequate Yearly Progress

         Viewed in the light most favorable to the jury's verdict, [1] the record shows that on July 1, 1999, Dr. Beverly Hall became the superintendent of Atlanta Public Schools. Dr. Hall's administrative staff included Sharon Pitts (who worked as Hall's Chief of Staff), Colinda Howard (who oversaw the Office of Internal Resolution ("OIR") and was tasked with investigating employee misconduct), Millicent Few (who worked as the APS Director of Human Resources), and Veleter Mazyck (legal counsel). Additionally, under Dr. Hall, APS was organized into four School Reform Teams ("SRT"), which were specific geographic regions of metropolitan Atlanta and more specifically the elementary and middle schools within those regions. During Dr. Hall's tenure, Tamara Cotman served as the Executive Director of SRT-4, and as with all of the directors, her responsibilities included providing supervisory guidance to the principals and schools within her region.

         Immediately after Dr. Hall was hired as superintendent, she began working with professional education consultants to devise a means by which to measure and improve APS students' academic progress. Then, after those consultations, Dr. Hall established a system requiring students at all APS elementary and middle schools to be tested so as to determine the numbers of students who "met academic expectations" and the numbers who "exceeded" such expectations. Importantly, every school in APS was required to meet a "Target" number-i.e., a percentage of students in both of these categories, and Dr. Hall mandated that these Target numbers be raised every year.

         In January 2002, around the same time that Dr. Hall began implementing her Targets system for APS, the federal government enacted the No Child Left Behind Act of 2001. Under this legislation, the State of Georgia received federal funding to assist low-income school districts and, inter alia, was required to report whether its schools were making what was termed "Adequate Yearly Progress" ("AYP"), which was measured by students' performance on the annually administered Criterion-Referenced Competency Test ("CRCT"). Schools failing to achieve AYP received additional federal funding to assist teachers and struggling students.

         Although inextricably linked, the Targets established by Dr. Hall were separate from the requirements for AYP and, in fact, were more stringent. But in addition to the stated objective of being a means by which to measure students' academic progress during Dr. Hall's tenure, Targets quickly became the primary means by which to measure teachers and administrators' performance. For instance, the SRT Executive Directors, including Cotman, received salary raises if their schools made Targets and AYP, and employees at individual schools would similarly receive bonuses if their schools achieved their Target numbers. Indeed, Dr. Hall's own employment contracts also provided significant salary bonuses that were contingent upon APS achieving its academic progress Targets.

         The failure to make Targets, however, often resulted in negative consequences for APS employees. Specifically, teachers and administrators whose students and schools failed to meet Targets could be demoted (resulting in a decreased salary), transferred (also resulting in a decreased salary), or placed on what was termed a Professional Development Plan ("PDP"), which was often a precursor to the termination of one's employment contract with APS. Unsurprisingly, the pressure placed on administrators and teachers to make Targets became intense and was exacerbated by the fact that many at APS believed the Targets to be patently unreasonable. Despite such concerns, Dr. Hall was uncompromising in her stance that Targets be met, informing one principal upon his termination for failing to meet Targets, despite his school's academic progress, that she "had no time for incremental gains."

         Evidence of Cheating Throughout APS

         Within a few years of Dr. Hall's hiring as APS superintendent, large improvements in APS students' test scores led to suspicions that such gains may have been the result of cheating. Initially, little in the way of concrete evidence demonstrated widespread abuses. But in March 2005, a teacher at Parks Middle School informed the Executive Director of SRT-2 that the newly hired principal was explicitly promoting cheating on the CRCT. And when it appeared that the Director would not be taking any action, the teacher sent anonymous letters directly to Dr. Hall to inform her of what was taking place at the school. Shortly thereafter, the SRT-2 Director attended a staff meeting at Parks Middle School, acknowledged the anonymous letters, but ordered that they cease, stating that the principal had the backing of Dr. Hall and would not be leaving. Nevertheless, APS directed Reginald Dukes, a private investigator who had worked with APS in the past, to investigate the allegations. On June 30, 2006, after interviewing teachers, including the teacher who first reported the issue, Dukes submitted a report to Dr. Hall, in which he concluded that cheating had occurred at Parks Middle School. But Dr. Hall took no action as a result of the report, and APS never hired Dukes again.

         In July 2008, a summer re-test of the CRCT for students from several different APS schools was conducted at Deerwood Academy. During that re-test, several teachers collaborated to erase students' incorrect answers and change them to the correct ones, and as a result, Deerwood met its AYP target for that year. A few months later, in October 2008, Kathleen Mathers became the executive director of the Governor's Office of Student Achievement ("GOSA"), an agency tasked with providing data analysis on various education programs in the State. And in reviewing data related to the CRCT, Mathers noticed abnormally dramatic increases in student achievement within APS, including at Deerwood Academy, in comparison to scores statewide. In addition, her office and the Assessment Division of the Georgia Department of Education were receiving numerous anonymous complaints from parents and teachers of cheating at APS schools. Around this same time, the Atlanta Journal Constitution ("AJC") published an article regarding the unusual gains in test scores within APS, in which they quoted an expert in the field of psychometrics, [2] who stated that the gains were as "extraordinary as a snowstorm in July" and warranted further investigation.

         Based on her own suspicions and the AJC's article, Mathers decided to conduct a statewide erasure analysis on all of the 2008 CRCT summer re-tests. In essence, such an analysis entailed scanning the tests with an Optical Mark Recognition machine that determines if answer bubbles, in addition to the one ultimately filled, also contain residual amounts of pencil graphite, indicating that the bubble had been filled but later erased. The analysis was completed in April 2009, and based on the results, which showed that 11 Deerwood students had significantly high instances of erasing a wrong answer and changing it to a correct one (i.e., wrong-to-right erasures), as well as an additional investigation, GOSA concluded that cheating had occurred at Deerwood Academy during the 2008 summer re-test. Thereafter, Mathers attempted to schedule a meeting with Dr. Hall to discuss the erasure analysis, but after being unable to do so, she had a copy of the report hand-delivered to Dr. Hall at a local conference the superintendent was attending.

         On June 23, 2009, Mathers met with APS OIR director Howard and Penn Payne, an external investigator, who APS hired to look into the cheating allegations, and informed them of GOSA's findings. Following this meeting, on July 6, 2009, Dr. Hall emailed Mathers to inform her that APS and Payne had completed investigations and determined that there was no evidence cheating had occurred at Deerwood Academy. Then, on August 21, 2009, APS released Payne's report regarding Deerwood, which found no evidence of cheating. Ultimately, however, Mathers learned that the statements in Dr. Hall's email and the conclusions in the Payne report were false. In fact, APS had not conducted an internal investigation and, in a draft report that Dr. Hall ordered Few and Howard to destroy, Payne actually concluded that cheating probably occurred at Deerwood during the 2008 summer re-test.

         Unsatisfied with APS and Dr. Hall's response to her concerns, in the autumn of 2009, Mathers decided to conduct a statewide erasure analysis for the 2009 CRCT administered the previous spring. The analysis was conducted by CTB/McGraw Hill, and on January 22, 2010, it released its report, which included the number of wrong-to-right erasures in each school in the state (and in each classroom of every school), and flagged those schools with the highest numbers of wrong-to-right erasures. The report flagged 58 APS schools as having moderate to severe wrong-to-right erasures. Consequently, in February 2010, GOSA ordered APS, as well as other flagged districts, to conduct an internal investigation into the suspected cheating and report its findings by April of that same year. In light of this directive, Dr. Hall assembled a Blue Ribbon Commission ("BRC") to conduct APS's investigation. The BRC then hired KPMG and tasked its investigators with interviewing APS teachers and administrators. But additionally, despite Mathers cautioning APS against questioning the erasure analysis, the BRC hired a private company to conduct another such analysis. And on August 2, 2010, based on the second erasure analysis and KPMG investigators' interviews of APS teachers and administrators, the BRC submitted its report to GOSA, in which it found no evidence of cheating. Unconvinced, Mathers rejected the BRC's findings.

         The Governor's Special Investigation into APS

         Following her rejection of the BRC's report, on August 26, 2010, Mathers requested that Governor Perdue order a special independent investigation into the suspected cheating on the CRCT within APS. Governor Perdue agreed and appointed former Attorney General Michael Bowers, former DeKalb County District Attorney Robert Wilson, and investigator Richard Hyde, with assistance from the Georgia Bureau of Investigation, to investigate the matter. Subsequently, the special investigators went to CBT/McGraw Hill's headquarters in Indianapolis, Indiana, to replicate and, therefore, verify GOSA's previous erasure analyses of the 2008 and 2009 CRCTs. As a result, the investigators determined that the previous erasure analyses may have even under-reported the numbers of wrong-to-right erasures on those two tests. In addition, from October 2010 through May 2011, the special investigators and GBI agents conducted over 2, 100 interviews of APS teachers and administrators employed throughout 55 schools. And despite APS leadership being uncooperative and many teachers lying during interviews, eventually 82 teachers and administrators admitted to cheating during the 2009 CRCT, with many further admitting that such cheating had been occurring at numerous APS schools for years.

         On June 30, 2011, the special investigators released their report, concluding that widespread cheating on the 2009 CRCT had occurred within 44 APS schools. Specifically, the special investigators' report found that teachers and administrators had cheated by numerous means, including violating testing security and storage protocols, changing students' answers after the tests were completed, providing students with correct answers while the tests were being administered, and copying the tests and reviewing the correct answers with students prior to the tests being administered. In addition, the special investigators found that testing irregularities were witnessed but not reported as required by testing protocols, and that testing coordinators and administrators signed documents stating that protocols were followed despite being well aware that those averments were not true. The report also found that the reasons provided by teachers and administrators for why they cheated were myriad. Many witnesses explained that if they made Targets and AYP (which they claimed was difficult to do without cheating), they received bonus money and their schools' achievement would be publicly recognized at APS's annual year-end convocation. But many more witnesses stated that they engaged in cheating or failed to report cheating they witnessed because of APS's culture of obsession with Targets and AYP and of punishing anyone who spoke out with demotions or terminations of employment.

         Tamara Cotman and Cheating within SRT-4

         As previously noted, from 2004 through 2011, Cotman served as the Executive Director of SRT-4 within APS. In August 2007, Patricia Wells, the principal of Ben Carson Middle School, who began working there the previous year, became concerned that many of her students' academic performance did not correlate with their elementary school CRCT scores and, therefore, she asked some of the students to explain the discrepancy. The students responded that their elementary school teachers had provided them with the answers to the CRCT. And because Ben Carson Middle School was within SRT-4, Principal Wells immediately reported the information to Cotman. But Cotman did not report Wells's allegations to OIR and took no action to investigate them. Then, at the end of month, Cotman gave Wells a negative performance evaluation. By October 2007, Cotman placed Wells on a PDP, and in December 2007, Cotman informed Wells that for the next school year she could either accept a demotion to an assistant principal position at a different school or resign. Wells opted to resign.

         Similarly, in the spring of 2007, just before the CRCT, the principal of Scott Elementary called a staff meeting, during which the teachers were shown methods for cheating on the upcoming test. Tonette Hunter, a paraprofessional at the school, was alarmed by the discussion and, thus, reported the incident directly to Cotman. To Hunter's surprise, Cotman advised her that the issue was none of her business and that she needed to cease discussing it if she wanted to keep her job. A few days before the end of that school year, Cotman terminated Hunter's employment.

         That same school year, Michael Milstead was hired as the principal for Harper-Archer Middle School, and immediately, he began noticing a significant discrepancy between many of his students' poor academic performance and their high 5th grade CRCT scores. Milstead alerted Cotman regarding this discrepancy, but she did not investigate and, in fact, informed Milstead that other principals did not appreciate him raising this issue. In addition, Cotman continued to place a significant emphasis on making AYP and placed Milstead on PDPs on two occasions when his school failed to meet the goals. Later, Cotman told Milstead that he should resign, as she would not be renewing his contract, and Milstead did so in 2009. Just prior to his resignation, Milstead observed that the previous year's CRCT scores were significantly higher than the year before, but he had no faith that those scores were legitimate.

         In yet another similar incident, Monica Hooker began working as a teacher at Best Academy in its inaugural year (2007-2008), and she was given the added responsibility of collecting testing data for the school. Hooker reported to her principal that the students' academic performance did not correlate with their high CRCT scores from the previous spring. Cotman responded to Hooker's report by demoting her and transferring her to another school, complaining to Hooker that she was not playing for the right team. Given Cotman's constant focus on test scores, Hooker understood her demotion to be a result of her refusal to cheat on the CRCT.

         In the spring of 2008, D. C., a third-grade student at Blalock Elementary (a school also within SRT-4), told his mother that his teacher had given students the answers during the recent CRCT. The mother, who had recently heard a similar story from her young niece, then reported her son's revelation to the school's principal and Cotman. But rather than investigating or reporting the complaint to OIR, Cotman told the mother that her son was lying. Unpersuaded, the mother filed a complaint with APS's central office. Subsequently, an investigator with OIR interviewed D. C. and his mother, but no further action was taken. And on September 12, 2008, the mother received a letter from Dr. Hall, stating that there was no evidence that cheating had occurred at Blalock Elementary.

         In the spring of 2009, Mary Gordon, a teacher at Turner Middle School, received the answers to the Common Assessment test and students' answer sheets. But Gordon refused to cheat on the test, and, in fact, reported the incident to Cotman, who refused to investigate the matter. Instead, Cotman advised Gordon: "They just do things like that at Turner." Later, Gordon was placed on a PDP, and she eventually resigned due to the stress caused by her work environment.

         Caitlin Sims was the principal of Grove Park Elementary during the 2008-2009 school year, and she noted that under Cotman, Targets were the number one priority. Indeed, Cotman constantly ranked schools against each other and used PDPs as punishment. Sims also recalled an instance when Cotman gave the principals empty frames and told them to put a picture in the frame of something important, such as a mortgage or car note as motivation for improving their schools' CRCT scores. After the BRC began its investigation into the cheating allegations, Cotman asked Sims to explain to the commission how the school's education strategies had resulted in the gains, but Sims refused, explaining that she was uncomfortable doing so based on the fact that the high number of wrong-to-right erasures at Grove Park were difficult to reconcile. Shortly after Sims's refusal, Cotman placed her on a PDP.

         Angela Williamson and Cheating at Dobbs Elementary

         Angela Williamson was a well-respected 4th grade teacher at Dobbs Elementary, which is within SRT-2. As with most other schools within APS, the pressure to meet Targets at Dobbs was tremendous, and the principal would stress at every staff meeting that Targets had to be met by any means necessary. In fact, the principal was so adamant about meeting these goals that she would tell Dobbs's teachers that they should find new professions if they were unable to make Targets.

         In 2007, during CRCT testing, the assistant principal brought the completed tests into a teachers' meeting at the end of the day and instructed the teachers to "clean up" the tests. When a few of the newer teachers looked confused as to the meaning of this comment, Williamson explained: "If you want to keep your jobs, you better clean these tests up." Williamson then demonstrated how to use the high achieving students' tests as a guide for changing the answers on the lower achieving students' tests.

         Several of Williamson's former students revealed that during the CRCT testing, she would walk around the classroom and provide students with the correct answers if they appeared to be answering questions incorrectly. All of these students further stated that Williamson admonished them not to tell anyone, often stating that "what happened in her class, stayed in her class." Nevertheless, a few of the students told other teachers about Williamson's actions. In addition, a paraprofessional, who proctored the CRCT in Williamson's class, observed her providing students with answers, thus corroborating the students' accounts of such instances. Moreover, GOSA's erasure analyses in both 2008 and 2009 showed that numerous students in Williamson's class had statistically significant high wrong-to-right erasures.

         Procedural Background

         On March 29, 2013, following the conclusion of the Governor's Special Investigation, the State charged Dr. Hall, Cotman, Williamson, and 32 other APS administrators, principals, and teachers, via an indictment filed in the Superior Court of Fulton County, with numerous crimes relating to the widespread cheating within APS, including conspiring to violate the Georgia RICO Act, providing false statements to law-enforcement officials, theft by taking, influencing witnesses, and false swearing. More specifically, the State charged Cotman with one count of conspiring to violate the RICO Act and one count of influencing a witness, and it charged Williamson with one count of conspiring to violate the RICO Act, two counts of providing false statements, and two counts of false swearing.

         On May 14, 2013, Cotman filed a special demurrer seeking to quash Count 4 of the indictment, which charged her with the offense of influencing a witness. Specifically, Cotman argued that the allegation that she "did intimidate [principal] Jimmye Hawkins" in an effort to hinder communication with the GBI was too vague. Shortly thereafter, the State re-indicted Cotman solely on the charge of influencing a witness, and then it filed a motion requesting that the trial court enter an order of nolle prosequi as to Count 4 in the original indictment and join the new indictment with the original for trial purposes. But Cotman filed a response objecting to joinder and a motion demanding a speedy trial on the new indictment.

         Subsequently, Cotman was tried separately on the sole charge in the new indictment of influencing a witness, and on September 12, 2013, at the conclusion of that trial, the jury found her not guilty. One month later, Cotman filed a plea in bar of former jeopardy, arguing that the State was barred from trying her on either the RICO or influencing-a-witness charges in the original indictment. The State filed a response, and following a hearing, the trial court denied Cotman's plea in bar as to the RICO charge but granted it as to the influencing-a-witness charge. Cotman appealed the denial of her plea in bar on the RICO charge, but this Court affirmed the trial court's ruling, concluding "that Cotman, having opposed the State's invitation to join the two indictments for a single trial, faces subsequent prosecution because of her own election and thereby waived the protections against subsequent prosecutions afforded by OCGA § 16-1-8 (b)."[3]

         On September 29, 2014, after months of discovery, pre-trial motions, and 21 defendants electing to plead guilty, the trial for 12 of the indicted defendants, including Cotman and Williamson, commenced.[4] During the six-month trial, numerous witnesses, including 14 of the defendants who had opted to plead guilty, testified as to the evidence discussed supra. The State rested its case on February 11, 2015, and, thereafter, the defendants presented their respective cases over the course of the following six weeks. Finally, on April 1, 2015, after nearly a week of deliberation, the jury found Cotman and Williamson guilty on the charge of conspiracy to violate the RICO Act and further found Williamson guilty on the two charges of providing false statements and the two charges of false swearing. Both Cotman and Williamson waived motions for new trial, and these appeals follow.


         1. Cotman and Williamson contend that the trial court erred by instructing the jury that it could convict the defendants if it found that they violated either subsection (a) or subsection (b) of the RICO Act despite the indictment charging the defendants with conspiring or endeavoring to violate subsections (a) and (b), conjunctively. We disagree that this instruction constituted error.

         At the outset, we note that a trial court's duty in delivering charges to the jury is to "tailor those charges not only to the indictment but also adjust them to the evidence at trial."[5] In doing so, a trial court should tailor its charges to "match the allegations of indictments, either by charging only the relevant portions of the applicable Code sections or by giving a limiting instruction that directs the jury to consider only whether the crimes were committed in the manner alleged in the indictment."[6] And importantly, "in reviewing an allegedly erroneous jury instruction, we apply the plain legal error standard of review."[7] Bearing these guiding principles in mind, we turn now to the defendants' specific claim of error.

         At the time the indictment in this case issued, [8] OCGA § 16-14-4 (a) of the Georgia RICO Act provided: "It is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money." OCGA § 16-14-4 (b) provided: "It is unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity." And subsection (c) of the Act provided: "It is unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (a) or (b) of this Code section."

         In Count 1 of the indictment in this matter, the State charged all of the defendants with violating OCGA § 16-14-4 (c) of the RICO Act in that

said accused . . . unlawfully conspired and endeavored to acquire and maintain, directly and indirectly, an interest in and control of U.S. Currency, the property of the Atlanta Public School System ("APS") and the Georgia Department of Education ("GaDOE") as further specified below, through a pattern of racketeering activity in violation of OCGA § 16-14-4 (a), and while employed by and associated with APS, unlawfully conspired and endeavored to conduct and participate in, directly and indirectly, APS through a pattern of racketeering activity, in violation of OCGA § 16-14-4 (b), as described below and incorporated by reference as if fully set forth herein; contrary to the laws of said State, the good order, peace and dignity thereof . . . .

         During the charge conference, the State requested that the court instruct the jury that the State only had to prove that the defendants conspired to violate subsection (a) or subsection (b), even though the indictment stated that the defendants had violated both subsections, conjunctively. Over the defendants' objection, the court agreed. And indeed, after it instructed the jury on the State's burden of proof and the law pertaining to ...

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