Arthur Burnett, Sr. Second Interview

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Oral History of Honorable Arthur Burnett, Sr.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is William Marmon and the interviewee
is Honorable Arthur Burnett, Sr. The interview took place at the home of William Marmon on
Wednesday, October 16, 2019. This is the second interview.
MR. MARMON: Good morning, Judge Burnett.
JUDGE BURNETT: Good morning, Mr. Marmon.
MR. MARMON: We’re going to start this session with your work after you got out of the
Army with Robert F. Kennedy. So if you could tell us how that
connection was made and what you did for Robert Kennedy.
JUDGE BURNETT: In January of 1961, I was assigned to the General Crimes Section of the
Criminal Division, which dealt with issues of government corruption and
organized crime, Jimmy Hoffa, the Labor Movement, and related issues.
On January 21, 1961 I was approached in my office by a representative of
the Assistant Attorney General, Herbert J. Miller, and told that the
Attorney General wanted to see me. I reported to the Office of the
Attorney General and met with him personally. He advised me that he had
checked my background and college and law school records and my
personal history and said that he wanted me to be his personal assistant.
He told me he wanted me to work with him and the Deputy Attorney
General, Byron R. White, to monitor the Civil Rights Movement and the
FBI to make sure that its agents would not engage in any unlawful law
enforcement practices. He emphasized that I would be reading FBI
reports for him and that I was to advise him of the important things in
them, and he emphatically stated that I could only disclose what I read to
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him, the Deputy Attorney General Byron R. White, and the President of
the United States what I read, especially any information that was
classified as secret or confidential. He stressed that I could not even tell
my wife what I read. He swore me to these obligations. He also stressed
with me that the FBI would be monitoring me to make sure I made no
unauthorized disclosures. I responded that I understood the obligations
and would be most careful to obey them.
Shortly thereafter the position of Deputy Chief of the General
Crimes Section became vacant, and I was made Acting Deputy Chief of
the General Crimes Section as well as the representative of the Section to
keep Robert Kennedy aware of all significant matters dealt with by the
General Crimes Section. In that capacity, it was my duty to keep the
Attorney General advised of all the major government corruption criminal
cases and activities involving organized crime, United Mine Workers,
Jimmy Hoffa’s activities and other major cases. I ended up serving not
only as his confidential assistant to monitor the Martin Luther King
movement, but sitting in on the weekly meetings which he had with the
Section Chiefs of all the various sections of the Criminal Division of the
U.S. Department of Justice.
During that time, there were allegations made that in the State of
Maryland, senior citizens and gullible people were investing in two
savings and loan associations, First Colony Savings and Loan and First
Continental Savings and Loan, headed by J. Kenneth Edlin and William
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L. Robinson, who was their General Counsel. Allegations were made in
the Press that these individuals were engaging in mail and wire fraudulent
activities. Allegations were also being made that Congressman Thomas F.
Johnson and Frank W. Boykin were trying to persuade President Kennedy
and the Attorney General Robert F. Kennedy to intervene and make sure
that Joseph Tydings, who was the U.S. Attorney in Baltimore, was not
investigating the matter to bring charges against these two congressmen
and the Savings and Loan operators of mail and wire fraud and
government corruption in order to advance his own political ambition to
become a United States Senator, but really that he had a bona fide case
against these savings and loan operators for mail and wire fraud and the
congressmen for government corruption, for conflicts of interest and
possibly for bribery.
Robert Kennedy asked me to review the grand jury testimony and
the FBI investigative reports to make sure that Joseph Tydings was doing
his duty and not using this event as a means to enhance or advance his
own political ambitions.
At that time, Byron White, was the Deputy Attorney General and
he sat in on this meeting. I read the entire grand jury testimony as well as
the FBI reports, and on a week starting on a Monday, we met in the
Attorney General’s Office with Joseph Tydings and one or two of his
Assistant U.S. Attorneys from Maryland, and Robert Kennedy had me
summarize, like a prosecutor, in an opening statement to a jury in a
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criminal case of what the evidence showed against J. Kenneth Edlin and
William L. Robinson that wire fraud and mail fraud was being perpetrated
against unsuspected members of the public as well as conflicts of interest
violation and conspiracy by the two Congressmen to prevent criminal
prosecution of J. Kenneth Edlin and William L. Robinson. For two-and-ahalf days, I summarized the evidence that had been presented to the grand
jury and what was in the FBI reports. Well, Joseph D. Tydings sat on the
side of the room much like this one just listening. Robert Kennedy was
sitting behind his desk with Bryon White sitting by his side. I made a twoand-a-half day opening statement summarizing the significant evidence.
When I finished, the stark reality was that Robert Kennedy stood, even
kind of faltered a little bit. He said, “Arthur, you have convinced me. We
have no choice but to go forward with prosecution of these men. He then
with tears in his eyes said Frank Boykin who was like an uncle to him. He
said in a haltering voice, “He was my father’s closest friend.” With tears
running down his face from his eyes to the edges of his lips, he said, “We
have no choice but to go forward with and prosecute, otherwise the
Kennedy administration may have a scandal on its hands, much like the
Tea Pot Dome scandal. To face and defend against. “You have saved us
from that scandal, and I’m appointing you special prosecutor in this case
with Joe Tydings.”
I ended up being assigned Special Assistant U.S. Attorney for the
State of Maryland by Robert Kennedy to prosecute Thomas F. Johnson,
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from the Eighth Congressional District of Maryland, and Frank W.
Boykin, who was the dean of the Alabama Congressional delegation.
Congressman Boykin was represented by the noted Edward Bennett
Williams.
One of the most difficult aspects of that case was an event one
morning during the trial in which Congressman, Boykin came over to me
and said, “Boy, you’ve got guts to prosecute me. If we were in Alabama,
you couldn’t even come into federal court as a lawyer. And I said to him,
“You are the defendant in this case and we are in Maryland and not in
Alabama. The Attorney General has appointed me to prosecute this case,
and that is what I am going to do, and your lawyer, Edward Bennett
Williams, should be the one talking to me and not you. If you talk to me
again, I’ll bring the matter to the attention of Judge Roszel C. Thomsen,
the presiding judge in this trial, to deal with you.” He never spoke to me
again after that encounter.
We tried the case in about a 10 – 11-weeks trial, Monday through
Thursday. Judge Roszel C. Thomsen reserved Fridays to deal with his
motion matters and other administrative functions. The jury convicted
Tom Johnson, Frank Boykin, J. Kenneth Edlin, and William Robinson of
all the counts in the indictment.
Then, of course, an appeal was taken. Congressman Thomas F.
Johnson filed an appeal claiming that the indictment and the trial had
included evidence of his actions in the United States Congress as to
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statements he had made protecting savings and loans association in
Maryland which was in violation of the Constitution’s protection of the
speech and debate clause to what Members of Congress did in the
Congress. Joseph Tydings had left the position as United States Attorney
to run in the primary to be elected to the U.S. Senate. I became chief
counsel and wrote the brief for the government on appeal and argued the
case in Richmond, Virginia, before the United States. Court of Appeals for
the Fourth Circuit as the lead lawyer for the United States Congressman
Frank W. Boykin did not appeal. He had only received a $40,000 fine and
was not sentenced to any confinement to prison. J. Kenneth Edlin and
William Robinson did not appeal. Congressman Johnson was the only
defendant who appealed and the question was whether the Speech and
Debate Clause of the United States Constitution precluded the Executive
Branch from bringing criminal charges against a member of Congress for
what he or she does in Congress.
When I got up to argue the case before Judge Simon Sobeloff, the
Chief Judge and the two other judges on the Panel, when I opened my
mouth to speak, no words could come out. My vocal cords were frozen. I
remember Simon Sobeloff saying, “Mr. Burnett, we know you are a young
lawyer, but we’re not going to eat you. Just relax and tell us what the
government’s position is.” I exhaled. I then made the argument, and the
case was taken under advisement. The Fourth Circuit agreed with
Congressman Thomas Johnson’s argument that the indictment and trial
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had included congressional matters he had performed and should not have
done so, and that under the Speech and Debate Clause in the Constitution
of the United States, it was inappropriate. They concluded that this
affected his conviction on all the counts in the indictment involving him.
The Government then sought review in the United States Supreme Court.
I was not involved in that processed. After argument, the majority on the
Supreme Court affirmed the Fourth Circuit’s ruling. Three Justices
dissented and asserted that the Speech and Debate Clause was meant to
immunize Members of Congress only for the content of what they said in
Congress from libel and defamation suits and not other conduct. This
decision in the Supreme Court affirmed the Fourth Circuit’s reversal of
Thomas Johnson’s conviction, and his case was sent back to the U.S.
District Court in Maryland for a retrial. At that point, I was no longer
involved. Steve Sachs, who had been an Assistant U.S. Attorney, had
become the United States. Attorney. He prosecuted Tom Johnson a
second time, and he was again convicted of his interference in the savings
and loans matter in connections with contacts with Robert Kennedy and
others in the Administration in trying to persuade the Department of
Justice not to prosecute J. Kenneth Edlin and William L. Robinson for
their endeavors to persuade senior citizens and others to invest in the two
Savings and Loan Associations they operated.
That was one of the most remarkable experiences I had in my life
in addition to monitoring the Martin Luther King movement and serving
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as a GS-15 Deputy Chief when I was only a GS-11 and then GS-12. I
think I eventually got to be a GS-13 before I left the United States
Department of Justice and transferred to the United States. Attorney’s
Office in the District of Columbia.
The other most startling and significant event in my professional
career while an attorney with the United States Department of Justice was
the day that John F. Kennedy was assassinated in November 1963. About
five (5) minutes after word got out that President Kennedy had been shot,
Robert Kennedy called for me. He said, “Arthur, I want you here with me
today. My Brother, the President, has been shot and killed, and I might
get too emotional. I want you here with me and to speak for me. I want
you to be the voice on the phone to tell the United States. Attorney and the
FBI what to do with reference to this shooting of my brother, the
President.” I was to tell him what was in the calls that came in and what
he wanted done and then I on the phone would speak for hm. You might
say I ended up acting as his Puppet” in de facto acting and speaking for
him as Attorney General, with him sitting at his desk and me being the
puppet on the phone directing Barefoot Sanders, the United States
Attorney who later became a United States District Court Judge, and the
FBI what the Attorney General wanted done. Then between 2:00 and 3:00
a.m., he said, “Arthur, you have been here with me all day, call your wife
and have her come pick you up. Get a couple hours of sleep.” My wife
picked me up at Constitution Avenue entrance, the main assess to the
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Attorney General’s office. I went home and went to bed about 3:00 a.m.
or shortly thereafter. My wife woke me up about five minutes before
10:00 a.m. and said the radio indicated that a man named Jack Ruby had
gotten in to the jail compound and where Lee Harvey Oswald was being
detained and had killed him. I have often wondered, and I still wonder
today, had I not gone home, and was still on the telephone in the Attorney
General’s office, could have detected something and could have provided
guidance to the FBI which would have directed the FBI to have taken
steps which would have prevented Jack Ruby from obtaining assess to Lee
Harvey Oswald to have killed him before we could have learned a lot
more from him.
MR. MARMON: Interesting. Did you continue to work with Robert Kennedy?
JUDGE BURNETT: I continued to work for Robert Kennedy until he decided to leave and run
for the United States Senate for the state of New York. But what I have
told you were the two most significant events in my relationship with
Robert Kennedy and by work with him at the United States Department of
Justice. Later I was told by Joseph Tydings and others that Robert
Kennedy already prior to the November assassination of John F. Kennedy
to introduce me the President in person and take me to the White House,
and to interview me with the possibility of putting me on a Federal District
Court as a judge.
MR. MARMON: You had an appointment?
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JUDGE BURNETT: I was told later that there was a notation in the papers of President
Kennedy about scheduling me for an interview with him. That was later
when people were interviewing me about my history and they would say
are you aware that the papers at the White House made a reference to you?
I then responded that I had no prior knowledge that such an appointment
had been arranged for me to meet President Kennedy in person, I was not
aware of that arrangement until they told me about it.
MR. MARMON: Going back to your work with the Civil Rights Movement with Martin
Luther King and so forth, were you aware that the FBI was taping Martin
Luther King?
JUDGE BURNETT: I’m not sure I should answer that, but I can say yes, I was aware of the
taping, but I cannot tell you the contents.
MR. MARMON: Okay. You said you were on the Mall during the March on Washington?
JUDGE BURNETT: Yes, I was on the mall in Washington in August of 1963. My wife was
ready to deliver our third child, our second son, and I was on the Mall as
eyes of the Administration. Robert Kennedy said to me, “Arthur, I want
you on the Mall to observe to protect against any riots or unrest. I was to
pretend to be a supporter of Martin Luther King and tag along with his
group of supporters. I was to make sure that if any signs of unrest or riots
were about to occur, I was to contact him so that we could get the
marshals, the National Guard, or military out there to quell any
disturbance or other unlawful conduct.” I was to pretend to be a tag along
with Martin Luther King’s group so no one would be suspicious of me but
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to leave discretely around 10:00 p.m. at night to go home and get some
sleep and not to sleep with them so that people would not discover who I
was and my role. I woke up early in order to be back on the Mall about
6:30 to 7:00 a.m. and kind of hung around in the crowd just watching and
listening to make sure we would have no unlawful rioting or other
criminal activity.
During the balance of the time that Robert Kennedy was there, I
still was liaison for the Criminal Division to keep him advised of all the
major cases and other matters of sufficient importance to be brought to his
attention.
MR. MARMON: Did you follow other activities of Martin Luther King?
JUDGE BURNETT: No. Just the visit here to Washington and the surveillance of the reports.
MR. MARMON: Later you got an award from the United States Department of Justice?
JUDGE BURNETT: In 1963 as a result of my work in the Congressman Thomas F. Johnson
and Frank Boykin case and my work with the Attorney General in other
matters I received the Sustained Superior Performance Award of the
Attorney General for the liaison work I did with him.
MR. MARMON: Say again what the nature of the award was.
JUDGE BURNETT: Sustained Superior Performance Award.
MR. MARMON: When did you leave the Justice Department?
JUDGE BURNETT: When Robert Kennedy indicated he was going to leave the Department of
Justice to run for the United States Senate, I applied to the U.S. Attorney’s
Office in Washington, D.C. to transfer from the Main Justice to become a
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full-time trial attorney. In April of 1965, the officials in the United States
Attorney’s Office said they had room for me to transfer over to that
Office. I left the Criminal Division of the United States Department in
April of 1965 and became an Assistant U.S. Attorney. I was assigned to
rotate through the various sections of the United States Attorney’s Office,
and then the Grand Jury, and then the Appellate Section, and eventually
was assigned as a senior prosecutor based on my background at the Justice
Department to take over cases of other prosecutors when they were
already tied up in a trail and another of their assigned cases was ready. I
recall in the course of that rotation, I tried 83 felony cases. A couple of
times, I had two or three cases being deliberated on by a jury at the same
time. I was as a metaphor the prosecutor on roller skates, between trial of
cases.
MR. MARMON: Wow. How long did you stay in that job?
JUDGE BURNETT: I was there from April of 1965 until December of 1968. I’m not sure if it
was in November or early December 1968, I was contacted and advised
that the Metropolitan Police Department was considering hiring an inhouse lawyer as Legal Adviser to deal with the aftermath of the riots and
property destruction which had occurred in the District of Columbia
following the assassination of Martin Luther King in April, 1968. I had
several people approach me and asked me to consider applying for that job
in view of my personal civil rights background and experience at the
United States Department of Justice and in the United States Attorney’s
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Office. I applied for that position and was selected as the Legal Adviser
for the Metropolitan Police Department, as the first such Office in the
Police Department, and is now called General Counsel of the Department.
I there worked directly with the Chief of Police in preparing proposed
testimony for him and General and Special Orders to govern the conduct
of police officers in law enforcement, and served as special counsel to
investigators of homicide, sex offenses and robbery cases, and in
educating these investigators what they needed in affidavits for arrest and
search warrants so that they would not be challenged in court as
insufficient.
MR. MARMON: For the District of Columbia government?
JUDGE BURNETT: For the District of Columbia government. I left the U.S. Attorney’s Office
in December of 1968 to become the “Legal Advisor” to the police
department to make sure that it would avoid police brutality complaints. It
would respect civil rights and constitutional rights of residents of the
District of Columbia and others in the city. Indeed, some Officers thought
I should be called the Squad Car Lawyer and there was talk of even giving
me a Police Car and the authority of having a gun like a Detective, but that
never materialized. The title of the position was later changed to “General
Counsel.”
I had planned to be there for three to five years. However in late
February or early March I received a call from a judge of the District
Court for the District of Columbia advising me that the Court had been
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selected to be a pilot court to establish a new United States Magistrate
system as assistant to Federal Judges, and that based on my experience
they would like me to consider applying for one of the two positions being
created in that court. I discussed it with my wife and its impact on our
family life and children, and the time it might involve with reference to me
having time for my family, but I convinced her that in time it could lead to
a higher judicial office and greater pay, and was appointed the first
African-American United States Magistrate in the United States and was
sworn in and entered on duty June 26, 1969. I applied and was appointed
a U.S. Magistrate, it did not have attached to it the word judge at that
point, in June of 1969. Congress later amended the Federal Magistrates’
Act to add the name so that persons holding these positions are now called
United States Magistrate Judges.
MR. MARMON: Before we get to that, I want to go back to be sure we’ve covered any
notable activities with the D.C. metro police.
JUDGE BURNETT: Basically my role in the police department was primarily to assist the
Chief of Police and prepare his testimony before congressional
committees or responding to requests for information from the Mayor and
being available to advise the homicide squad, the robbery and sex squads
on the course of their investigations to make solid cases and not make
mistakes and arrest wrong people and so forth. So I became the kind of
in-house lawyer to oversee the operation of the special sections of the
police department to make sure they made valid cases and did not arrest
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the wrong people and in their investigations they would go out and arrest
the right person for the crime. So I became the lead advisor to the
specialty departments in the police department to improve the quality of
their investigations and their work.
MR. MARMON: Who was the Mayor at this time?
JUDGE BURNETT: Walter Washington.
MR. MARMON: Who was Chief of Police?
JUDGE BURNETT: John Layton. And after John Layton, there was Jerry Wilson and
thereafter Maurice Cullinane became chief of police. I interacted with all
three of them in the brief period of time I was with the Metropolitan Police
Department.
MR. MARMON: Were there any particular big issues that happened during that period?
JUDGE BURNETT: The Chief of Police and later Chiefs Wilson and Cullinane went ahead
with my advice, and police operations proceeded smoothly. There were
no complaints of police brutality or civil rights violations or misconduct
during that time and transitions in the Metropolitan Police Department.
I was appointed as a magistrate judge in the federal court June 26,
1969. The U.S. District Court here in D.C. was one of five (5) federal
district courts in the country selected to be pilot programs to start up the
operation of the magistrate system. At that point, Judge John Sirica was
chief judge of the court. Judge George Hart was the backup and became
Acting Chief Judge, and Oliver Gasch became the Chair of the committee
overseeing the Magistrates’ position and developing of the scope of duties
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the magistrates would perform. The three of them counseled me.
Magistrate Burnett was my title at that point. They said that they wanted
me and then Magistrate John Doyle to be innovative urged the two of us
be leaders to establish what roles magistrates should play in the federal
court system by way of functions and responsibilities and showing how
we could relieve federal district court judges to be more in the courtroom
actually trying cases as much as possible. So they started by sending to us
habeas corpus petitions in which convicted defendants would be filing
papers claiming they were wrongly convicted. As a result of that project, I
came up with the idea of contacting the law schools to tell their law
students that there were opportunities for “internship positions” with us
magistrates with reference to constitutional issues, due process, and
validity of their conviction. I also, because of my academic background,
was introduced to former Supreme Court Justice Tom Clark who had been
retired from the United States Supreme Court and then was the Director of
the Federal Judicial Center and the staff of the Administrative Office of
the United States Courts in charge of supporting the administrative
functions needed by the new United States Magistrate. I was made pretty
much the liaison Magistrate of the five (5) pilot programs with the Federal
Judicial Center and the Magistrate’s Division of the Administrative Office
of the United States Courts to develop standards for affidavits for arrest
and especially search warrants as to the required specificity and factual
basis to comply with the United States Supreme Court decisions and
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requirements for corroboration and establishing the reliability of
informants. I became very much the scholar authority and liaison for the
five federal district courts in the country on the warrant function, including
Eastern Virginia, Kansas, San Diego, and San Francisco, California and
consulted with my magistrates in those federal districts whenever they had
questions and served as the lecturer on these issues whenever we had
training sessions in those early years.
MR. MARMON: Tell me again what this program was?
JUDGE BURNETT: This was a program of developing quality standards for how magistrates
would function and what functions magistrates could take on to relieve
federal district judges’ chambers work and the quality of handling federal
criminal cases in the courts of the United States which commenced with
arrest and search warrants. Other functions included handling pretrial
matters and motions. Where the magistrate did not have the authority to
decide the matter, the magistrate could submit “reports and
recommendations on how the matter should be handled or decided.” The
federal courts developed rules which say that a judge may refer such
matters and the magistrate should review the matter and submit a report
and recommendation, which would be filed as part of the record, and if the
lawyers did not file any objections, the judge may then approve the report
and recommendation. If they disagree with the magistrate’s position, then
they can ask for a hearing before the district court. So the system was one
where under rules of the district court, the magistrate’s recommended
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decision and it would become the ruling of the district court automatically
unless a lawyer did not agree with the report and recommendation, in
which case the judge would hear the lawyers and decide the matter.
During this time period the Watergate scandal developed involving
President Richard Nixon and Chief Judge John Sirica assigned handling
the matter to himself, and designated me to handle some pretrial discovery
matters in potential criminal cases, and issues that would arise in his
assigned civil cases. I would review issues of pretrial discovery in the
Watergate cases and urged him to issue an Order tor disclosures as to the
missing 18 minutes of recording on the tapes which was not there and I
handled issues arising in his entire Civil Cases Calendar. In his civil cases
I would review matters which arose and make reports and
recommendations which were sent to Judge George Hart for review, and
he told me that unless he was convinced that the Court of Appeals would
reverse the recommended ruling, he would approve my recommended
rulings. For several months we followed this practice and I am not aware
that he disagreed with my recommended rulings in such cases until the
Watergate cases ended with President Richard Nixon’s resignation and the
resulting criminal cases in the United States District Court for the District
of Columbia.
MR. MARMON: And before that?
JUDGE BURNETT: Before that, the process did not exist. Before then, they had been court
commissioners which basically just issued warrants, set bail and handled
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preliminary hearings but did not have the broad role of being assistants to
federal district judges in handling a broad scope of pretrial matters in both
criminal and civil cases.
MR. MARMON: You were the first black to be appointed?
JUDGE BURNETT: Yes, of the five pilot programs in the jurisdiction, two magistrates were
appointed here. One was me, and the other was John Doyle, a Caucasian
man about fifteen years or more my senior. Of magistrates appointed in
the five jurisdictions, I was the only African-American.
MR. MARMON: What about in the whole system?
JUDGE BURNETT: At that point, the pilot programs were the first ones. Other courts had not
even started the magistrate system. We were the initial courts set up to
establish the contours of the functions of the system.
MR. MARMON: I see. Before that there were just commissioners.
JUDGE BURNETT: Right. Commissioners who dealt with petty offenses like traffic matters in
national parks, issued arrest and search warrants, and set bail and
conducted preliminary hearings to refer cases to the grand jury. Other
courts did not have magistrates. The system was just beginning to
establish the positions in the years that followed. So I was on the cutting
edge and basically ended up being the liaison to the Federal Judicial
Center and the Administrative Office of the United States Courts in
establishing a guidebook for how the magistrate system would even work.
I worked directly with Retired Justice Thomas Clark, and with then his
successor, Senior Judge Walter Hoffman from the Eastern District Court
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system in Virginia in establishing the criteria or standards for search
warrants and for affidavits for arrest warrants, for preliminary hearings,
for compliance with the Bail Reform Act that Congress had enacted, and
for review of motions with reference to alleged invalid and wrongful
convictions arising in, habeas corpus proceedings. As a result of that
process, and the volume of habeas corpus proceedings we were getting
alleging wrongful convictions, I contacted the various law schools in the
Washington, D.C. area and advised their professors that magistrates did
not have law clerks at that time, Congress had not authorized law clerks
for magistrate at that time. I suggested and recommended that such an
exposure would enhance their law school education process and they
agreed, and started having law students perform the judicial law clerks did
for federal district court judges. I suggested to the law professors having
some of their law students in their second or third year getting some
clinical experience serving in a role like law clerks for district judges, and
especially for magistrates handling habeas corpus matters, and this led to
the American Bar Association creating the law clerkship program to have
law students come to its mid-year meetings and advised of the program in
the magistrates’ system and given guidance on how to thereafter apply for
and receive judicial clerkships with United States District and Appellate
Court judges and State Court Judges throughout the entire United States.
I subsequently became a lead lecturer in the ABA Judicial Clerkship
program for several years. In implementing the judicial law internship
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program, I had the law students who volunteered to serve with me as a
magistrate sit in on the actual court proceeding have them sit in on
programs where judges will incorporate their written material into
magistrate reports and recommendations going to federal judges on issues
pending in a case. Thus, the program I developed gave law students onsite exposure, like a hospital resident training while still in law school. I
recall one summer having 17 interns while a magistrate in the United
States District Court and the judges would call and ask whether they could
borrow an intern on a problem pending before them in the course of
running the internship program in the United District Court for the District
of Columbia. So you might say in that sense, I was the instigator of
convincing the American Bar Association to set up the Judicial Clerkship
Program for the entire country.
Then later, after the pilot program had been in existence for a
while Congress provide authority and money was appropriated funds for
full-time magistrate judges to hire one full-time judicial law clerk.
Going back to a previous reason for sitting up the Magistrate
system was the problem of the issuance of arrest and search warrants. One
of the major problems in the federal court system was that commissioners
were accused of just being rubber stamps for law enforcement officers and
there was substantial time devoted in trial and appellate courts to dealing
with compliance in the adequacy of affidavits in warrants in federal cases.
Counsel would argue that commissioners would sign any piece of paper
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police officers brought in without scrutinizing the factual content. They
wanted a review of Supreme Court case law standards of what was
required to be implemented by the magistrates and the standards more
effectively applied. They wanted the magistrate system to refine and
establish the system and build a system for the quality of warrants being
issued to eliminate the case load of challenged arrest and search warrants
throughout the entire system. As a result of that concern I became a
leading expert for the magistrate system in the issuance of warrants and
was also invited to become a teacher at the National Judicial College for
State Court judges as well, and for ten (10) years, from 1970 to 1980, I
was one of the two key faculty instructors for the National Judicial
College, even teaching state judges on how to meet standards, for meeting
Supreme Court case law standards. They had learned of my expertise
through my work in the American Bar Association in implementing the
operation of the United States Magistrates’ system. So I became a leader
in perfecting the quality of arrest and search warrants for the entire nation.
MR. MARMON: Also I gather you recommended that the magistrate’s opinions be sort of
like that of a federal judge, binding?
JUDGE BURNETT: Actually, before we get to that issue, we had another big innovation, I
wish to discuss, and that was the so-called preliminary hearing. In many
instances, the practice had been that the government put on its evidence
through the investigating officer who recited a lot of hearsay as to what
others told him or her. I resisted the United States Attorney just using us
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as rubber stamps and urged that in cases where a defendant is accused of
rape, or especially if the woman was a prostitute or a sex worker, the
defendant is entitled to present evidence showing consent, or in a
homicide case, showing self-defense. The U.S. Attorney filed a
Mandamus against me for taking this legal position which went to the
United States Court of Appeals for the District of Columbia Circuit on the
scope of a preliminary hearing. Judge Spottswood Robinson wrote an
opinion, more than a hundred pages in length, which upheld my legal
position, especially since the implemented the Bail Reform Act enacted by
Congress required the magistrate to consider the quality of the evidence
against the accused. The Court ruled that the magistrate should have the
authority to allow defense to show the quality of the evidence and
therefore allowed defense counsel to present at the preliminary hearing
evidence showing the strength of the prosecutor case and to present direct
testimony at the preliminary hearing in a sex offense case, or in a
homicide case involving self-defense, or in a narcotics case involving
undercover buys of narcotics where there are discrepancies as to the
description of the seller offender That case is Coleman v. Burnett, 477
F.2d 1187 (D.C. Cir. 1973).
I was mandamus in a famous case, Coleman v. Burnett, Burnett
being me as a respondent. Spottswood Robinson wrote the opinion, and
ultimately, the U.S. Conference for the entire system, headed by the chief
justice or the United States Supreme Court, I am told adopted the
46
principles of that opinion for the operation of the entire federal court
system. So the preliminary hearing is not just a rubber stamp for what the
police officers testify, but the defense is entitled to present evidence
showing weakness or compromising circumstances where it could affect
the quality under the Bail Reform Act and other acts or potential defense
the accused may have in connection with the criminal case.
I also led the effort in implementing the Bail Reform Act enacted
by the Congress, and indeed developed a system in which when
defendants appeared before me in court, and I issued a pretrial release
order which would also say that even if you’re guilty, compliance with
these conditions may impact your sentence, and if you comply with the
requirements of this Bail Release Order, have a fixed residence, maintain
employment, and not commit a criminal offense while on release, the
federal district judge may take your compliance into consideration in
determining your sentence, and therefore you should not recidivate or
commit crimes while on bail.
I indeed served on a national commission of a group of doctors and
lawyers under the supervision of Chief Justice Shirley Abramson, of the
Wisconsin Supreme Court, a well-recognized state Supreme Court jurist,
and I came out with the recommendation that district court judges here in
D.C. say if the judge put you on pretrial release, the quality of your
compliance with those conditions will impact the decision on what
sentence you might get or whether you even get probation. If you can’ not
47
comply with bail conditions, what reason do I have to believe you will
comply with conditions of probation.
Based on such considerations I developed that process of basically
implementing the Bail Reform Act of 1966 and conditions and including
in the order of bail release that alleged violations may be considered by
the Federal District Court judge in sentencing if you are determined to be
guilty. As a result of that approach, I had a record of people not
committing crimes while on bail release or violating condition of pretrial
release.
MR. MARMON: Broadening your scope of preliminary hearings in homicide, rape, and
undercover narcotics cases, what you were just talking about, and now the
other thing is convincing Congress in opposition to the Department of
Justice, what was that?.
JUDGE BURNETT: That was a development with reference to civil cases which later occurred.
It dealt with magistrate judges trying civil cases with consent of the parties
functioning as substitute district judges.
MR. MARMON: Let’s go ahead and talk about that.
JUDGE BURNETT: Well actually in 1975, I got a call from the President of the Unified Bar of
D.C. and a fellow named Carl Goodman, who was the general counsel of
the Civil Service Commission, asked me whether or not I could
recommend anyone who was Black or Negro or Colored to be the legal
advisor for the civil service system. After ten or fifteen minutes of
discussions, they said, Magistrate Burnett, what about you. I said well I
48
enjoy being a magistrate. They said, but you have three or four kids, and
this job will give you a salary increase of about $25,000 or more a year,
you will be historically the first Black Legal Advisor for the entire civil
service system and you are young enough to return to the bench as a judge
later.
So I went home and discussed it with my wife, and she said yes,
because you’re so busy as a magistrate I’m raising these kids alone. In
this new job you will have other attorneys working for you. She stated
that she had been thinking about whether she should go back to California
and have her family help raise these children. So reluctantly, I resigned as
a magistrate in 1975 and became the legal adviser with the title, Assistant
General Counsel for legal advice, much like a Solicitor General, for the
entire Executive Branch of the U.S. government, with about a $25,000
increase in salary.
MR. MARMON: What about this issue of giving a magistrate power to substitute for a trial
court judge?
JUDGE BURNETT: I’ll get to that. In this position as legal advisor to the civil service system,
I was also a member of the Federal Bar Association. The Federal Bar
Association appointed me to serve as its Chair of its Committee
overseeing the magistrate system. When proposed legislature came up
later while I was at the Civil Service Commission, they asked me to testify
before the Congress on a proposal to give magistrates authority to try civil
cases. It was then that I, not as a magistrate, but as a lawyer with the Civil
49
Service Commission, but representing the Federal Bar Association, that I
testified before the Senate Judiciary Committee headed by Senator Ted
Kennedy. Strom Thurmond was the chief Republican on the Senate
Judiciary Committee. Griffin Bell testified that the Justice Department did
not object to giving magistrates, although they didn’t even have the title of
judge at that point, the authority to try cases. Attorney General Griffin
Bell that the Department of Justice did not object to giving magistrates the
authority to try civil cases, if a party did not like the result before the
magistrate, and could get a de novo trial before a district court judge.
Then I was called as a witness after Attorney Griffin Bell had completed
his testimony and stated as a former magistrate representing the Federal
Bar Association that I was elated to see the Justice Department approved
giving magistrates the power to try civil cases, but it would impose an
inordinate financial burden on litigants to have two trials in the district
court and the time that would be involved in a second trial. I further
testified that magistrates, if they act on basis of consent of the lawyers,
will in fact be less arbitrary or less dogmatic than federal district court
judges because they want to encourage consents, so they are going to be
middle of the road or bend over backward being fair and reasonable in
their rulings and courtroom manner. I further stressed that magistrates
will want to become district court judges and exercise their best abilities to
be fair, reasonable and correct in their decisions. Many of them will want
to become federal district judges or judges in the courts of appeal and
50
exercise their best judicial temperament, manner and overall judgment
capacity.
When I finished testifying, both Senator Ted Kennedy and Senator
Strom Thurmond made eloquent statements saying what Mr. Burnett, had
suggested to them made persuasive sense. The Senate Judiciary
Committee adopted the approach I advocated over the position of the
Attorney General and the United States Department of Justice, thus
allowing civil trials before United States magistrates sitting as substitute
district judges in such a case where counsel and the parties had consented
to trial before the magistrate, with the right to a direct appeal to the Court
of Appeals as if the magistrate, with the party’s consent had acted as if he
or she were a district court judge.
MR. MARMON: Bell’s position was there should be a de novo.
JUDGE BURNETT: With a magistrate decision, under Attorney General Griffin Bell’s
testimony, if one party or the other was unhappy with the result before the
magistrate, that party could get a new complete trial before a district court
judge and thus resulting in two trials in the district court before going to a
court of appeals. So I prevailed on that issue and even got praised by
Senator Strom Thurmond. At that time, I was a lawyer with the Civil
Service Commission as its legal advisor a not a magistrate in the court
system.
Further down the road, in 1979 then Chief Judge Aubrey Robinson
called me and told me that Henry Kennedy who had replaced me as
51
magistrate had been appointed to the Superior Court of the District of
Columbia, and inquired if I was interested in coming back as magistrate
again. In that Congress had enacted legislation to permit magistrates to try
civil cases and had also substantially increased the salary level for
magistrates to 90 percent of a district judges’ salary rather than the initial
sum of 75 percent, I reapplied for the vacancy and was appointed the
second time to the position of magistrate in the United States District
Court for the District of Columbia in January 1980.
MR. MARMON: What about expanding of the practice to be able to handle pretrial motions
and use of settlement conferences in civil cases?
JUDGE BURNETT: In addition, basically that was considered a function that magistrates could
exercise even before they broadened the statute. The district court had had
a position called pretrial examiner where they could use a pretrial
examiner to handle pretrial conferences and do a pretrial order in civil
cases. That was a function before the magistrate system existed. The
Court had a gentleman named Mr. John Finn who had been pretrial
examiner even before the magistrate’s system was established. The
district continued referring civil cases to him even after the magistrate’s
system was started with the magistrates only initially handling criminal
matters. It was sometime later in the use of magistrates, the judges started
referring civil matters to the magistrates and the Pretrial Examiner’s
position was phased out. The Court had me go to the U.S. District Court
in the Southern District of New York for several days because the
52
Southern District of New York had an extensive practice of referring civil
cases to a magistrate for purposes of seeing if the magistrate could get
settlement, establishing how to establish comprehensive pretrial orders,
what issues were presented, what documents be produced, what witnesses
are going to be identified, and testify, and other matters which might arise
in the course of the civil trial. Thus I had the experience of sitting in the
Southern District of New York federal court several days to learn its
system and to put it into operation in the United States District Court for
the District of Columbia.
MR. MARMON: In 1980 you went back into magistrate court. Why don’t you talk about
that period?
JUDGE BURNETT: I went back as a magistrate. The position was still called magistrate.
Congress did not add to the tile of the position “Judge” until the late 1980s
after I had been appointed to the Superior Court of the District of
Columbia in November 1987. Following my return in January 1980
during that time, district court judges were looking for ways to expand the
usage of magistrates because of the press of criminal trials and mandatory
limits for defendants being held without bail or on pretrial detention to be
brought to trial. I want to say this politely, referring civil cases to the
magistrates tremendously increased so that they could be on the bench
trying criminal cases with statutory deadlines and speedy trial issues. The
district court judges referred more and more civil cases for discovery
supervision, hearing on motions, pretrial and settlement conferences.
53
During this period of time the civil case work became more predominant
than the handling of criminal case matters. Lawyers even increasingly
began to consent to civil trials before the magistrates on the merits. As a
result I as a magistrate presided at the trial of civil cases in 13 civil cases,
more than any district judge that calendar year. When 1985 came I ended
up trying thirteen (13) civil cases on the merits than any district court did
that year. This fact was documented in my testimony before the Senate
Governmental Affairs Committee when I was appointed to Superior Court
and testified in my confirmation hearing. A listing of the cases was
provided and submitted for the Committee’s record. I had the record of
trying thirteen civil trials in 1985 in the role of a district court judge and
more than any district court judge on the District Court tried that year.
MR. MARMON: Great. We’re going to go back to when you were an assistant to Judge
Sirica during Watergate.
JUDGE BURNETT: As a matter of fact, when I was assistant to John Sirica, he turned over his
entire civil calendar to me so he could focus exclusively on Watergate
cases and all the issues arriving in that matter. He also referred to me and
asked for my views on some criminal justice discovery matters. In the
course of looking at pretrial discovery matters, I raised with him an issue
of a missing gap in the tapes and he should issue an order requiring
President Nixon and the Watergate people to produce information
concerning how that missing gap of 18 minutes in the tape came about.
He did so, and that led to President Nixon’s resignation.
54
MR. MARMON: Wow. And you were acting as a magistrate then?
JUDGE BURNETT: That’s right. I was acting as a magistrate then. Not only in criminal
matters, but he turned over his entire civil calendar for me to review and
submit reports and recommendations. I didn’t have authority to decide
ultimately what we would do, and unless he got objections, he would sign
the order as acting chief judge.
MR. MARMON: What period was that?
JUDGE BURNETT: That was between 1969 to 1975. That would have been the time before I
transferred in December of 1975 to the United States Civil Service
System.
MR. MARMON: Between your two stints as magistrate. We’ll talk about that the next time.
JUDGE BURNETT: Okay. The situation was later on when I went back and became a judge,
Jule Sugarman, who was Vice Chair originally of the Civil Service
Commission, was getting married. He later asked me as a Superior Court
Judge to perform his marriage ceremony and we remain friends until his
death.