Teachers in Trouble

Introduction

The most important piece of advice that we can offer a teacher who is accused of or charged with a criminal offense or who becomes the suspect of an investigation, is to SAY NOTHING! Other counsel who are a little bit more brash would say, “SHUT UP, SHUT UP, SHUT UP!”

The teacher, whether questioned by an administrator or the police, must simply say that, “My counsel has instructed me to remain silent.” It is preferable to blame the attorney for not being allowed to talk. The police of course will attempt to use all kinds of tactics to have you, the teacher, make a statement or simply give “your side” of the story. Please RESIST doing so even if the police say, “We know you are innocent,” or “We will not arrest you.” Do not fall for any of these tactics. One of the ways the police will coerce male teachers to confess or to make statements is to state, “Why don’t you man up?” This is particularly unnerving for some and, at worst, rude!

The reason for silence is very simple. First and foremost it is your constitutional right and when you are under stress you sometimes say things that can be taken the wrong way and that come out incorrectly or are interpreted wrongly. Besides, teachers love to explain everything and sincerely believe that by doing so they will vindicate themselves and get the matter resolved. This is not true, because very well-trained police investigators and detectives use methods of questioning that are very misleading and open to different interpretation. Moreover, there is no guarantee that the teacher’s statements will be written down correctly in the police report or in the same order that the question was asked to ensure context and accuracy. Again, it is much better to not say anything. In other words, SAY NOTHING!

THE RELATIONSHIP BETWEEN THE TEACHER AND THE SCHOOL DISTRICT IS A TENUOUS ONE

On one hand the school district, as the employer, has a duty via loyalty and fair play to the teacher. This incorporates the whole concept of due process and a fair hearing. The school district and its officials should scrupulously honor the presumption of innocence and do nothing to prejudice the teacher in any way. Accordingly, the school district should not assist any investigating agency in gathering evidence against a teacher. The school district should do everything to ensure that the teacher’s constitutional rights are protected. However, the school district owes the public, and particularly the pupils, a duty of the highest care almost like a common carrier in that there are reporting statutes when it comes to child abuse which apply equally to church-related/priest abuse and other mandatory reporting duties.

WHAT THE SCHOOL DISTRICT SHOULD DO UPON LEARNING OF A CRIMINAL INVESTIGATION

Most cases begin the same way. A school official, usually the principal, is notified by a local police agency or an arm of the police. The police agency will inform the school official that one of their teachers is being investigated for a crime. The following is what should happen as a result of this common scenario, but oftentimes the opposite occurs, and that can cost the teacher his or her livelihood or credentialing as well as landing a jail sentence:

1. Because of the duty of loyalty and presumption of innocence, the school official or administrator should immediately notify the teacher of the pending charge and/or\ investigation. The same administrator who alerts the teacher should also give the teacher whatever information and data received regarding the case.
   However, the opposite is what usually occurs whereby the administrator or school official notifies the teacher of the criminal investigation and proceeds to ask the teacher questions about the allegation without counsel, without the union rep, without anybody, or sometimes in front of other administrators. See also and for additional information on general Do’s and Don’ts.
2. The school official or administrator should notify the teacher not to discuss any of the accusations with anyone until the teacher first speaks to an attorney of their choice. The teacher should be advised not to even speak to the principal, because the conversation is not confidential nor is it protected under the attorney-client privilege and, therefore, could be used against the teacher. Unfortunately, many times the school official will request the teacher to write a written statement regarding the allegation. That is something that should be avoided at all costs.
3. It is preferable that the school administrator or principal not ask the accused teacher any questions pertaining to the criminal investigation. However, many times the school official or the principal will tell the teacher that they must cooperate with the police and answer all their questions: DON’T DO IT.
4. In an ideal world this is the advice we are giving teachers. The California Teachers Association (“CTA”) would advise the teacher to immediately consult with a GLS attorney at no charge pertaining to their constitutional rights, privileges, and possible defenses. In addition to a referral to an experienced criminal defense attorney, CTA representatives should instruct their members/teachers to contact GLS attorneys who specialize in employment and credentialing matters since employment could be adversely affected.
   Oftentimes the school official will deny access to the teacher’s attorney/defense investigator to do a proper investigation, while allowing the police and district attorney on school grounds at any time they want.
5. The school administrator or principal should notify the CTA representative or the attorney for the teacher and provide them with the relevant information (i.e., the police officer’s name and agency conducting the investigation).
   To the contrary, the school official or principal will work with the police against the teacher to conduct what’s better known as a “pretext” call to try to trap the teacher into saying something in the investigation which is contrary to the teacher’s rights.

How the school district, the principal and/or administrators can make your criminal investigation and your criminal case a nightmare:

1. The school official and/or principal usually make themselves the arm of the investigating agency and question the teacher about the allegations and opens up its own “independent” investigation.
2. The school official and/or principal pressures the teacher to waive his or her constitutional right to remain silent and to cooperate with the investigating agency to either make a written statement regarding the allegation or to confess. This really hamstrings the defense attorney, so please do not do any of the above.
3. The school official and/or principal tells the teacher that they should cooperate with the police and answer all of their questions.
4. The school official and/or principal often denies access to school property or makes it very difficult for the attorney and/or his defense investigator to conduct their own independent investigation. The defense counsel often has to spend time and resources obtaining a court order to obtain the same access that is often freely allowed to the police, district attorney, and the prosecutor’s investigators. This makes the criminal defense attorney’s job much more difficult.
5. The school official and/or principal often unite in what is termed an “unholy alliance” in a very covert manner. The police, with the help of the principal, will make a pretext call to the teacher and their allies. Oftentimes there are retaliation issues that arise.
6. The school official and/or principal will often conduct their own independent, internal investigation and refuse to disclose any of the internal information to defense counsel and their investigators. Therefore, this denies the defense equal access, which arguably is a Brady violation.

What steps will the Law Offices of Michael A. Fiumara take to protect you, a teacher, who is accused of any offense or crime?

1. We will conduct a comprehensive interview with the teacher and all possible witnesses as soon as possible while the evidence is fresh, and counsel the teacher to say nothing, or as other defense counsels say, “Shut up, shut up, shut up!”
2. We immediately coordinate the defense of the criminal allegations with any administrative proceeding that is pending. It is important that the teacher not do anything in the administrative proceeding that will compromise the teacher’s position in the criminal matter. (All evidence submitted in the Administrative Hearing can and will be used by the prosecution against the teacher in the criminal case.)
3. Right from the beginning we will advise the teacher that it is important not to speak to anyone except his or her attorney or the investigator who has been hired. Any conversations and third party communication could be used against the teacher, especially if the communication is not privileged. If the teacher is incarcerated, they must not speak over the telephone to family members or to any other third party. Jail telephone calls are monitored and tape recorded, unless it is with the attorney.
4. We, as your defense counsel, will contact the investigating school official and/or principal to find out which agency is conducting the investigation and identify the investigating police officer. We will explain to the investigating agency that any contact with the teacher will be through counsel. We do not want the police coming into the classroom, talking to the teacher, or coming to the teacher’s home or to their spouse’s place of work.
5. We will keep the teacher/client fully informed of any development with the pre-filing investigation or with ongoing administrative proceedings and court dates. Constant communication is very important and reduces stress.
6. As counsel for the teacher/client we will discuss all the administrative leave options with or without pay during the investigation. We, defense counsel, need to also discuss the options available to the teacher/client regarding salary continuation, bond, etc.
7. We also, as the teacher’s attorney, will give the teacher the option of consulting a GLS administrative attorney who specializes in credentialing and other employment issues. This is the right thing to do.
8. We, as your counsel and trusted confidant, would request that any arrest, if imminent, be made as discreetly and as quietly as possible. The goal is to get little if no public newspaper coverage before any bail arrangements have been made, or prearranged, in some cases.
9. As your counsel we personally contact the particular district attorney who is handling the investigation to determine if formal criminal charges will be filed so that bail can be discussed and surrender could be arranged, if possible.
10. We attempt to reduce felonies to misdemeanors if there are no defenses and simply try to influence the district attorney’s decision as best we can without doing anything unethical.
11. As counsel, if formal charges are filed we arrange for the teacher to be placed on administrative leave with pay, pending the outcome of the case or, in the alternative, without pay, but this should be arranged with the administrator.
12. We also hire the very best local investigators who know the lay of the land so that they can obtain the best access to school property and interview all potential witnesses in the case, making it possible to get the best result.
13. We are also very sensitive to the adverse affect that any plea bargain may have on the teacher’s credentialing so as to preserve the teacher’s ability to make a living now and also in the future.
14. We also, as counsel, are mindful of all possible alternative dispute resolutions to spare the teacher the indignity of a stressful prosecution and public trial. Again, as counsel, we consult with an experienced credentialing attorney at the plea bargain stage to negotiate the best financial package for the teacher so that it does not trigger credential revocation and/or lost income.
15. We attempt to obtain as much information as possible about the allegation from all investigating agencies, the police, the district attorney, and any other potential eyewitnesses.
16. This law firm attempts to develop character references from all sources and this tends to become very important if there is a trial later on.
17. We are prepared to go to trial if necessary and if it is in the teacher’s best interest. This is a decision that we make with the teacher and the teacher ultimately knows what’s best for them. We can only advise.

The above-mentioned advice and active participation by this firm could mean the difference between working and not working and lengthy incarceration.

HOW WE HANDLE CHILD ABUSE ALLEGATIONS WHICH ARE MORE PREVALENT THAN YOU THINK

About ten years ago a special education teacher employed in Southern California was accused of child endangerment/endangering [P.C. 273a(b)] when the teacher allegedly fed two students with the same spoon! This case was extremely unusual and frightening for all teachers. The underlying facts started when a student with a common contagious condition, Cytomegliovirus (CMV), was enrolled in the teacher’s special education class.

What was most disturbing in this case was that the prosecution filed this case being fully aware that CMV, except to unborn fetuses or very severely immune suppressed individuals, is not considered a serious or dangerous condition. During the course of the trial, the prosecution was made aware that the student who had been diagnosed with CMV was not even in a contagious state. The second student who was fed with the same exact spoon had previously contracted CMV in the past (and therefore was immune from becoming ill from CMV). The medical examination established that the student was healthy.

Unfortunately, the attorney who handled this particular case had no luck working with the prosecutor’s office to dismiss the charges. Instead, the prosecutors in Southern California went forward with an eight-day marathon trial which included testimony of several witnesses, dozens of exhibits, and complex argument. However, while the jury only took twenty minutes of deliberation to acquit the teacher, the teacher was financially and emotionally devastated by this accusation and ensuing publicity.

Please understand that this case is significant because child endangerment jury instructions have been modified from “is endangering” to “placed in a situation which may endanger.” This vague instruction encompasses all conduct of placing minors “in a situation which may endanger.” Unfortunately, when the prosecution was unable to establish that potential exposure to CMV was endangering, the prosecution then resorted to lumping together all diseases that could be contracted through saliva and then argued that it “may endanger” a minor notwithstanding there was no evidence that the student with CMV had any other infection but CMV.

Again, while the jury rejected the prosecutor’s case, the cost of time, money, and the stress that it placed on the teacher, was entirely unnecessary.

HOW WE HANDLE CHILD ABUSE ALLEGATIONS AGAINST TEACHERS

1. Counsel will interview all the alleged victim(s) and witness(es) to get their written statements by an experienced investigator as to exactly what happened. Recording statements or even videotaping them could be helpful.
2. Counsel must subpoena all school records of the student/victim for strict scrutiny and review. This means getting the records from all schools attended by the student/victim (private and public).
3. Counsel must examine all the physical evidence of the case which is usually medical records and reports for physical or sexual abuse. Consulting an independent expert is important.
4. Counsel should look at all Facebook, Twitter, and Internet sites where the alleged student/ victim posts pictures, videos, and comments.
5. The attorney representing the teacher should consider a psychological evaluation of the teacher. This might help refute the allegation that the teacher fits a profile of an individual with abnormal sexual interest in children or who is physically abusive or violent.
6. Counsel should examine the crime scene thoroughly whether it is a classroom, windows, blinds, clothing, adjoining structures, and surrounding circumstances, including surveillance tapes that are routinely done in schools. The surveillance tape(s) need to be requested early on, because most tapes are disposed of within 10 to 20 days, since they are recycled.
7. Counsel should investigate any motive to fabricate or lie by the student and/or victim. Some of these are bad grades, a recent grudge or argument, or recent scuffle or fight, and any motive, character for honesty and veracity, and/or any inconsistent statements from what the student/victim told the police.
8. It is important for counsel to obtain any expulsion or suspension records of the student/ victim prior to the criminal trial so that it could be brought in and/or obtain a deposition of the student/victim prior to the criminal trial to impeach the student/victim.
9. Counsel should investigate prior sexual knowledge that the student/victim has [782 of the Education Code] that would supply the student/victim with the knowledge to testify about sexually explicit matters. Counsel should be prepared to address Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence if it comes up in trial.
10. It is important that counsel pull all CalCrim jury instructions and review them with the teacher so that the teacher/client understands exactly what the prosecution must prove beyond a reasonable doubt to a jury.
11. Pull together everything possible to represent the teacher and explain it thoroughly to enable the teacher/client to aid counsel in preparing their defense.
12. Develop all character references and letters of recommendation, and vigorously represent the teacher since lengthy prison terms are the norm for any child abuse or endangerment cases that can be proven.
13. We are prepared to go to trial if necessary and if it is in the teacher’s best interest.

CONCLUSION

The first rule to remember is that silence is golden. Therefore, you should say NOTHING. In other words, we recommend that you shut up, shut up, shut up. I know it is rude to say this, but it is really great advice. In the alternative, we recommend that you, the accused, merely tell the police officer or school official that you want to be cooperative, but that your attorney (counsel) has advised you to not speak to them and to remain silent. Put the onus or the burden on your attorney. Make them look bad rather than say something bad or say something that will incriminate you.

When law enforcement investigates a teacher it is stressful and scary. Regardless of what you as the teacher may say or may have done, the teacher is entitled to the full protections of the law and the constitutional hallmark of the process.

Most importantly, the teacher has the right to protect his or her right to the presumption of innocence. If possible, we continue to work hard to arrange for the teacher to be continued on a salary so that the teacher may maintain his or her livelihood. In some instances we arrange for surrender rather than a dramatic arrest at the school or somewhere very public. We vigorously subpoena all records, gather all documents, and employ top-notch investigators.